DOUBTS BENEFIT: LEGAL MAXIMS IN ISLAMIC LAW, 7th16th centuries

Intisar A. Rabb

A DISSERTATION PRESENTED TO THE FACULTY OF PRINCETON UNIVERSITY IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

RECOMMENDED FOR ACCEPTANCE BY THE DEPARTMENT OF NEAR EASTERN STUDIES

Adviser: Hossein Modarressi November 2009

UMI Number: 3388074

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ABSTRACT DOUBTS BENEFIT: LEGAL MAXIMS IN ISLAMIC LAW, 7th-16th centuries This dissertation examines the history, function, and debates surrounding legal maxims (qawid 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 systems 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 whichin classical Islamic contextsstraddled political-legislative and juridicalinterpretive divides. Accordingly, my work focuses on maxims of criminal law that place certain limitations on the definition and imposition of criminal sanctions andby extensionthe reach of legitimate political authority. The udd maxim developed into the central maxim of Islamic criminal law, requiring judges to avoid imposing criminal sanctions in cases of doubt or ambiguity (idra l-udd bil-shubaht). My detailed study of this single maxim is illustrative of the genre of legal maxims, which first appear in the 1st/7th century. These maxims were distilled and collected in multiple treatises of legal maxims beginning in the 7th/13th centuries, continuing through the 10th/16th centuries, andafter a period of less robust activityreemerging 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 lawespecially 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.

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in honor of my brother

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ACKNOWLEDGEMENTS Words cannot adequately express the depth of my gratitude for my advisor, Hossein Modarressi. Without doubt, he has been the model mentor, scholar, teacher. Through his work and our interactions, he has shown me what conscientious scholarship means. Rather than attempt to force words to do what they cannot, I will endeavor in my own work to draw from his example to constantly seek and to make positive contributions to scholarship and the law, to scholars and scholars-to-be. I am profoundly grateful to the other members of my committee. Michael Cook offered the benefit of his rigor and quality of scholarship, which set exacting standards pursued in my own work. He patiently read through voluminous chapters with a critical and meticulous eye (and pen!), managing always to make incisive observations from quite unexpected corners. Kim Lane Scheppele encouraged me to address broader questions of law and society. She introduced me to the sociology of law and asked the sorts of questions that prevented me from settling for an account of what the legal sources told us in favor of examining what the lacunae and other sources exposed about what law was and what its actors were really doing. James Whitman helped shape this project in crucial ways from the beginning as he urged me to think deeply about core concepts in Islamic law and legal history with questions of serious comparative law in mind. His challenging comments prompted me to better identify and explore relevant concepts; the result was to make this survey richer than it would have been and set the stage for further pursuing what he has called the unique strength of comparative law gained by uncovering key relative differences to reveal fundamental values in the legal systems we study. These scholars share a blatant disregard for boundaries designed to separate one academic discipline from another, and collectively provided a model for me as I shuttled physically and intellectually between Princeton University and Yale Law School, navigating worlds of legal (along with social and intellectual) history, legal theory, and area studies. I am appreciative of other teachers at Princeton, Yale, and elsewhere. At Princeton, Mark Cohen, Andras Hamori, Abraham Udovitch, M. Qasim Zaman, and Aron Zysow each left an impression on particular aspects of this project. Special thanks to Amineh Mahallati for, amongst other things, teaching me Persian, and to Azar Ashraf for helping me with Persian sources. At Yale, I am especially grateful for the insights and support proffered by William Eskridge, Jr., Anthony Kronman, and Daniel Markovits. Elsewhere, I have been privileged to benefit from exchanges with and the stellar work of a number of other scholars, especially Sherman Jackson, Baber Johansen, Wael Hallaq, Wolfhart Heinrichs, Roy Mottahedeh, plus others in Iran and Syria. And the lessons I learned working with Thomas L. Ambro were invaluable. There are a great many friends and colleagueswho were also my teachersto whom I would like to express thanks for stimulating conversations and recommendations: Rashid Alvi, Mohammad Fadel, Najam Haider, Tariq al-Jamil, Nancy Khalek, Racha El Omari, Emmanuel Papoutsakis, Behnam Sadeghi, Asma Sayeed, Jack Tannous, and Laura Weinrib. Particular thanks to those who read and commented on
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multiple chapters, often in very rough form and sometimes on short notice: Katharina Ivanyi, Lena Salaymeh, Ahmed El Shamsy, Mairaj Syed, and Adnan Zulfiqar. Heartfelt thanks to Seven Air. Over many meals and spirited debates, as her regard for law and order shifted from derision to appreciation, she stoked in me a similar shift regarding law and economics by insisting on drawing close attention to the social logic of class and its intimate relationship to justice or the lack thereof. Several institutional awards of financial and other support facilitated the research necessary for this project. Princeton University and the Department of Near Eastern Studies provided generous fellowship funding for my initial years at Princeton, and the deans at the Graduate School have been especially accommodating to my nontraditional course of study. The Program in Law and Public Affairs granted some funding, but more importantly, as Princetons law school, it and its denizens provided an intellectual second home. The University Center for Human Values awarded a yearlong fellowship, as did the Mrs. Giles C. Whiting Foundation. The Center for the Study of Religion offered two years of funding and thought-provoking workshops. I have also received grants from the Foreign Language and Area Studies Program, the Hanna Fund, the Omar Foundation, the Princeton Institute for International and Regional Studies, the Princeton Council of the Humanities, and the Roothbert Fund. Thanks are due to the helpful staff at the libraries and archives at which I worked or visitedfirst and foremost, those at Firestone Library in Princeton, and also caretakers of libraries in Cambridge, Damascus, Dublin, Istanbul, London, New Haven, Rabat, Qum, and Vienna in pursuit of manuscripts and other sources of legal maxims that provided the framing for this project and laid the groundwork for the next. Finally, humble thanks to my family: my parents in particular, who first taught me about principles.

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TABLE OF CONTENTS ABSTRACT ................................................................................................................................................. iii ACKNOWLEDGEMENTS ............................................................................................................................. v TABLE OF CONTENTS...............................................................................................................................vii INTRODUCTION .......................................................................................................................................... 1 I. Debates: Questions of Institutional and Interpretive Authority ..................................... 3 II. History: The Rise and Pre-History of Legal Maxims Literature ...................................... 9 III. Function: Concepts of Doubt and Assertions of Authority ........................................... 16 *A Note on Islamic Criminal Law ................................................................................................... 22 CHAPTER 1. Islamic Legal Maxims as Substantive Canons of Construction: udd-Avoidance in Cases of Doubt ...................................................................................................... 28 I. Introduction .......................................................................................................................... 28 II. The udd Maxim as a adth? ........................................................................................... 32 A. Early adth Collections ................................................................................................ 32 B. Scholarly Perspectives on the udd Maxim as a adth ......................................... 34 III. udd Maxim amongst Early Jurists.................................................................................. 40 A. anafs and the Use of the Maxim in Iraq ................................................................. 40 B. Other Early Jurists.......................................................................................................... 45 IV. Splicing Maxims for a Touch of Class ................................................................................ 50 A. Attribution and Circulation: Two Different Circles .................................................. 52 B. Legal-Theoretical Rejection of Class-Based Distinctions ......................................... 59 V. The udd Maxim amongst Later Jurists .......................................................................... 64 A. Juristic Proponents ...................................................................................................... 64 B. Juristic Detractors (or Reluctant Adherents) ........................................................... 70 VI. Conclusion ............................................................................................................................. 78 APPENDIX. adth Versions of the udd Maxim and Isnd Map ........................................ 81 CHAPTER 2. udd Imposition vs. Avoidance: Law, Society, and the Jurisprudence of Doubt .................................................................................... 90 I. Introduction .......................................................................................................................... 90 II. Competing Values: Morality and Authority .................................................................... 93 A. Egalitarianism and Judicial Subservience .................................................................. 93 B. Social Status and Political Power ................................................................................ 98 C. Hierarchy and udd Laws ......................................................................................... 102
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III. Competing Cases: Imposition vs. Avoidance and Dealing with Doubt ....................... 111 A. udd Imposition: Egalitarianism and Judicial Subservience ............................... 117 1. Religious Egalitarianism: The Case of the Makhzm Thief ................................. 117 2. Judicial Subservience: afwns Case and The Case of the Drunken Orphan ....... 119 3. Moral Anxiety: Jurists as Opposition to Status-Reinforcing Undercriminalization ...................................................................................................... 123 B. udd Avoidance: Fairness & Moral Anxiety........................................................... 126 1. Death is Different: The Case of Miz and Stoning for Adultery ....................... 126 2. Al: Exemplar of Justice ........................................................................................ 140 a. Judicial Acumen: Al vs. Umar ........................................................ 141 b. udd Avoidance: Death is Dramatically Different....................... 147 c. udd Imposition: Reluctant Enforcement.................................... 149 3. Generalizing Death-is-Different: Jurists as Opposition to FairnessDisregarding Overcriminalization ...................................................................... 154 C. A Mixed Bag: Public Virtue, Private Vice ................................................................. 161 1. Privatizing Vice ..................................................................................................... 162 2. Delineating Public ................................................................................................. 166 3. Defining Doubt ....................................................................................................... 176 APPENDIX. Table of Cases Cited ....................................................................................... 179 CHAPTER 3. udd Avoidance vs. Imposition amongst Early Jurists: Methodology and Doubt ....................................................................................................................... 189 I. Introduction ........................................................................................................................ 189 II. Early Shfis ........................................................................................................................ 192 A. udd Definition, Commission, Imposition ............................................................. 196 1. Defining Criminal Elements ................................................................................. 197 2. Against Lenience ................................................................................................... 203 B. udd Avoidance.......................................................................................................... 208 1. Mens Rea: Subjective Indicia ................................................................................. 208 2. Proving the Elements............................................................................................ 211 C. Early Shfi Shubha ...................................................................................................... 215 III. Early anafs ....................................................................................................................... 218 A. udd Imposition ......................................................................................................... 219 1. Mens rea: Objective Indicia ................................................................................... 219 2. Finality .................................................................................................................... 226 B. udd Avoidance.......................................................................................................... 228 1. Defining Criminal Elements ................................................................................. 228 2. Primacy of Contracts ............................................................................................ 237
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C. Early anaf Shubha ..................................................................................................... 240 IV. Early Mliks ........................................................................................................................ 244 A. udd Imposition ......................................................................................................... 245 1. Mens Rea: Quasi-Objective Indicia and Shifting Burdens ................................. 245 2. Criminal Elements and Convention.................................................................... 249 B. udd Avoidance.......................................................................................................... 251 1. Criminal Elements and Completion.................................................................... 251 2. Finding Shubha: The Judicial Role ....................................................................... 253 C. Early Mlik Shubha...................................................................................................... 259 V. Conclusion ........................................................................................................................... 261

CHAPTER 4. The Expansion and Contraction of Doubt Jurisprudence: Substantive, Procedural, and Interpretive Shubha ........................................................................... 263 I. Introduction ........................................................................................................................ 263 II. Subjectivity and Mens Rea: anaf Shubha...................................................................... 264 A. Developing anaf Shubha .......................................................................................... 264 B. Developed anaf Shubha............................................................................................ 284 1. Mistake of law is an excuseIf Reasonable ....................................................... 285 2. Mistake of fact also is an excuseif plausible .................................................. 287 3. Creating mistake through contract .................................................................... 290 C. Shubha as Subjectivity ................................................................................................. 291 III. Accommodation and Legal Pluralism: Mlik and Shfi Shubha ............................... 291 A. Developing Mlik and Shfi Shubha ....................................................................... 293 1. Mistake of law is an excuse for the layperson .................................................. 294 2. Mistake of fact also can be an excuseregardless of intent........................... 298 B. Interpretive Ambiguity and Legal Pluralism ........................................................... 301 1. Legal Pluralism and Interpretive Ambiguity .................................................... 303 2. Mlik Interpretive Shubha and the Fiction of Knowledge of the Law .......... 309 3. Shfi Interpretive Shubha: Reasonable Differences Only in the Dominant Legal Regime......................... 312 C. Shubha as Interpretive Difference ............................................................................. 316 IV. Fault Lines: Strict Liability & Moral Values ................................................................... 317 A. Consensus Cases of Strict Liability ............................................................................ 318 B. Against Contracting Ambiguity ................................................................................. 319 C. Moral Values as Limits on udd Avoidance ........................................................... 319 V. Conclusion ........................................................................................................................... 320

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CHAPTER 5. The udd Maxim Questioned: Opponents and Reluctant Adherents.................................................................................................. 322 I. Introduction ........................................................................................................................ 322 II. anbal Shubha .................................................................................................................... 323 A. Ibn anbal: Faithful Agent of Mixed Traditions ..................................................... 323 B. The udd Maxim in Accord with anbal Traditionism: Limited udd Avoidance ........................................................................................... 328 1. Contested udd Avoidance ................................................................................ 342 2. Expanded udd Avoidance................................................................................. 344 3. Rejected udd Avoidance ................................................................................... 351 C. anbal Doubt Jurisprudence ..................................................................................... 353 III. hir Shubha ....................................................................................................................... 355 A. Developing hir Textualism.................................................................................... 355 B. A Textualist Theory of Ambiguity and the Principle of Precaution .................... 359 1. Reading Traditions in Andalusia: Authentication ............................................ 361 2. Interpretive Consistency: Social Status and Social Mores .............................. 364 3. Knowledge and Certainty: Burdens of Proof ..................................................... 368 C. hir Doubt Jurisprudence ........................................................................................ 372 IV. Conclusion ........................................................................................................................... 373

CHAPTER 6. Sh Duels over Theology and Interpretive Philosophies of Law: Textualism vs. Pragmatism, Traditionism vs. Rationalism ............................................................. 374 I. Introduction ........................................................................................................................ 374 II. Sh Debates: Rationalists vs. Traditionalists (Uls vs. Akhbrs) ........................... 375 A. The Battlefield: Theological-Legal Debates.............................................................. 375 1. The udd Maxim and Presumptions of Law .................................................... 375 2. Interpretive Authority: Revelation and Reason ............................................... 377 3. Ibn Bbawayh & Traditionist Foundations: Presumption of Innocence? ................................................................................. 387 B. Rationalist Thrust: Presumed Innocence and Legality .......................................... 393 1. Toward a Conservative Rationalism: Innocence on Textualist Bases ........... 393 2. Toward a Liberal Rationalism: Innocence on Rational Bases ......................... 398 3. Toward a Balanced Rationalism: Innocence on Textualist and Rationalist Bases ................................................ 405 C. Traditionist Parry: Avoiding Possible Culpability and One Right Answer as Text .............................. 411 1. Ambiguity between Law and Fact, Obligation and Prohibition ..................... 413 2. Ambiguity and Avoidance: One Right Answer as Text .................................... 415 3. Interpretive Process: Textual Canons and Constrained Discretion............... 425
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D. Rationalist Riposte: Reason after Revelation as the Right Answer ...................... 431 1. Defensive Theories of Innocence and Interpretive Discretion ...................... 433 2. Ambiguity and Ignorance: Due Diligence and Constraint ............................... 443 3. Ambiguity and Resolution: The One Right Answer as Process ....................... 447 III. Conclusion: The udd Maxim and the Innocence Presumption ............................... 451 CONCLUSION........................................................................................................................................... 453 APPENDIX: Bibliographical Guide to Legal Maxims Literature ...................................................... 458 BIBLIOGRAPHY ....................................................................................................................................... 483

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INTRODUCTION

As comforting as certainty may be, in law, it is much too often elusive. Laws are open-textured, making doubt inevitable.1 Arguably, there can be great benefit in doubt, or at least in investigating its causes and evaluating its effects. As one philosopher of law remarked, quixotic quests for certainty are likely to interfere with more fruitful quests for an intelligent understanding of the causes and management of our uncertainty.2 Accordingly, this study is not about certainty. It is about uncertainty, ambiguity, and doubt in Islamic law. In attempts to resolve the doubts that arise from the indeterminacies of text, jurists in many legal traditions appeal to canons of construction, also known as legal maxims. Especially in common law-like systems such as the American and Islamic legal traditions, maxims play a prominent role in the judicial interpretive process. But where and how did such maxims arise? What role did they play in addressing major questions of law and society? On what basis do jurists assert the authority to use them? * * *

This dissertation examines the history, function, and debates concerning legal maxims (qawid fiqhiyya) in Islamic law through the lens of one legal maxim that became central in criminal law and that dealt directly with doubt (shubha). Legal maxims are succinctly stated principles that jurists use as key interpretive tools when
1 H.L.A. Hart used this term to refer to the indeterminacies that will inevitably arise in general rules, standards, and principles, which, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate. H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) [orig. published 1961], 125-28. Frederick Schauer, An Essay on Constitutional Language, in Sanford Levinson and Steven Mailloux, eds., Interpretive Law and Literature: A Hermeneutic Reader (Evanston, IL: Northwestern University Press, 1988): 133-154, 153. 1
2

applying texts and settled precedents to new cases. As statements of existing rules drawn from prior precedents, maxims express interpretive processes and juristic values of particular legal schools andwhere sharedof dominant views in Islamic law. 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 and thereby constructing and subtly shaping the law. Studying the juristic usage of legal maxims can reveal much about a legal systems interpretive processes and the values of the jurists employing them. This is particularly true in criminal law, because this area of law reflects value-laden rules of societal (or divine) condemnation for certain behaviors. Moreover, unlike other areas of Islamic law (e.g., family law or ritual law, over which Muslim jurists assert near exclusive interpretive authority), penal law lies at the intersection of politics and law. Because criminal law straddles the political-legislative and juridical-interpretive divides in Islamic law, it provides a fruitful avenue for examining the operation of and rationales behind legal maxims in the two spheres. Accordingly, my work focuses on core maxims of criminal law that place certain limitations on the definition and imposition of criminal sanctions andby extension the reach of legitimate political authority. A saying that developed into the central maxim of Islamic criminal law requires judges to avoid imposing criminal sanctions in cases of doubt or ambiguity (idra l-udd bil-shubaht): the udd maxim. My detailed study of this single maxim is illustrative of the genre of legal maxims, which were distilled and collected in multiple treatises beginning in the 7th/13th centuries and continuing through the 10th/16th centuries, and which garnered resurgent interest in

the modern day. This narrow study serves as a means of addressing broader questions about the development and operation of legal maxims. Specific emphasis is on criminal law and the role jurists play in constructing and defining both doubt (shubha) and their authority to resolve it, together with the institutional, societal, and moral values that motivated them to do so. It is in view of these concerns that this dissertation addresses issues relating to the history, functions, and debates over legal maxims and doubt.
I.

Debates: Questions of Institutional and Interpretive Authority Beginning with the debates, jurists who are maxims-proponents typically face

severe criticisms for appealing to extratextual canons to fill gaps in the law left by the ambiguities and indeterminacies of text. These canons are controversial because they have no specific textual pedigree. Proponents of them have been challenged by jurists who do not believe that maxims aid in resolving doubt in the first place and that even if they did, they are illegitimate because they rest on no textual basis for legalinterpretive authority. Such debates arose in famously colorful terms in the American legal context, which is useful to review here because of how it resonates with analogous trends in Islamic law. Karl Llewellyn, American legal realist extraordinaire,3 once famously
3 Legal realism is the name given to the movement that attacked the classic understanding of the American legal process, called legal formalism or textualism, which was not wholly unlike the traditional textualist theories of Islamic legal interpretation (or for that matter, the Scalian-style new textualism, as discussed below). Legal realism gained steam in American debates about the nature of the legal interpretive process and the role of the courts during the 1920s and 30s, led by the likes of Karl Llewellyn and Max Radin. See Karl N. Llewellyn, A Realistic JurisprudenceThe Next Step, Columbia Law Review 30 (1930): 431-44; Max Radin, The Theory of Judicial Decision: Or How Judges Think, American Bar Association Journal 11 (1925): 357-62. Llewellyn redoubled his efforts in the 1950s, targeting legal maxims in particular through his famous tract his pitting canons against counter-canons (cited below). For a succinct overview of legal realism and the major interpretive philosophies in 19th and 20thcentury American law, see, Brian Leiter, American Legal Realism, in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding and William A. Edmundson (Malden, MA; Oxford: Blackwell, 2005): 50-66. 3

attacked legal maxims for being wholly indeterminate.4 He complained that for every maxim supporting one interpretation, there is a counter-maxim supporting the opposite view. And to prove it, he mapped out a damning thrust-and-parry chart of contradictory maxims commonly used in the courts.5 The idea was that judges used maxims selectively to reach predetermined results. Llewellyns critique transformed maxims from supposedly neutral principles that guided and constrained legal interpretation to conclusory explanations appended after the fact to justify results reached on other grounds.6 Textualists chimed in too, although they made exceptions for the more textbased interpretive maxims commonly called canons of construction. For them, substantive maxims that go beyond the text or express particular policy preferencessuch as those urging judges to read statutes in light of an unstated statutory purposerisk judicial lawmaking of the worst sort.7 Realists and textualists differed about whether law was objective or even identifiable but they agreed in some sense that courts should apply the law, and substantive maxims were an easy way to circumvent it. A maxim of central concern (and, it turns out, opprobrium) is the principle of criminal law that stands at the center of this study, arising in both the American and Islamic legal contexts. The rule of lenity in American law stipulates that criminal
4 Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed, Vanderbilt Law Review 3 (1950): 395-406.
5 6

Llewellyn, Rules or Canons, Appendix, 401-06.

Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, Wisconsin Law Review (1990): 1179, 1180. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997); John F. Manning, Textualism and the Equity of the Statute, Columbia Law Review 101 (2001): 1-127. 4

sanctions are to be avoided in cases of doubt or ambiguity. The comparable Islamic law udd maxim also directs judges to avoid imposing fixed criminal punishments in cases of doubt or ambiguity. In the American context, many have called for the elimination of the lenity rule because it seems to exemplify the very arbitrariness to which Llewellyn objected in his attack against maxims. The lenity rule, they contend, is a convenient tool for judges to flout express legislative intent to punish crime; its inconsistent application reflects the role of judges personal preferences rather than the rule of law, and it does so in the sensitive area of criminal lawwhere the structural imperatives of these legal systems dictate that deference to the legislature should be most pronounced.8 Textualists level similar attacks against substantive maxims,9 but reluctantly accept the lenity rule, only because of its long-standing presence in the law. For the Supreme Courts self-identified arch-textualist, Justice Antonin Scalia, lenity is as old as the common law itself, so I suppose that it is validated by sheer antiquity.10 In practice, the lenity rule persistswith Justice Scalia, surprisingly, as its greatest proponent.11 The udd maxim too has garnered sharp opposition in the Islamic legal context. Like Llewellyn, the vocal 5th/11th-century Sunn Andalusian jurist Ibn azm
8 See, e.g., Zachary Price, The Rule of Lenity as a Rule of Structure, Fordham Law Review 72 (2004): 885, 887 (arguing that lenity should be rehabilitated); Philip M. Spector, The Sentencing Rule of Lenity, University of Toledo Law Review 33 (2002), 511, 512 (arguing for modification through limitation); Dan M. Kahan, Lenity and Federal Common Law Crimes, Supreme Court Review (1994), 345 (arguing for abolition altogether).
9

See Scalia, Interpretation, 25-26 (noting that judges use of maxims is extremely selective and selfserving, akin to a person looking out over a crowd to pick out their friends).

Ibid., 26-27; cf. United States v. Wiltberger, 18 U.S. 35, 43 (1820) (The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.).
11 See Sarah Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, Harvard Civil Rights-Civil Liberties Law Review 29 (1994), 197; Kahan, Lenity and Federal Common Law Crimes, 390-96.

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had posited that for every maxim there is a counter maxim, which jurists could use to flout the law. Like Scalia, Ibn azm was a textualist who favored interpretive canons,12 but unlike Scalia, he made no exceptions for the udd maxim. In fact, he complained that the udd maxim is particularly egregious, because it contravenes the clear sense of udd laws as mandatory fixed criminal sanctions for serious crimes and, consequently, the intent of the Lawgiver that those laws not be transgressed.13 Antiquity was no defense. Using a maxim of dubious provenance to avoid observing the clear obligation to punish criminal law violations, he said, runs roughshod over the foundational sources of law, including the very basic Islamic legal principle of divine legislative supremacy requiring that the law be obeyed.14 Moreover, juristic applications of the maxim were inconsistent and incoherent; itlike all substantive maximswas a useful tool for anyone wishing to disregard the law, and it easily resulted in disparate application of the law.15 Muammad Amn al-Astarbd, the 11th/17th-century Sh jurist of the textualist-traditionist school of Sh law, took a similar position. For him, substantive
12 See Adam Sabra, Ibn azms Literalism: A Critique of Islamic Legal Theory (in two parts), al-Qanara: Revista de Estudio rabes 28 (2007), Part I: 7-40, Part II: 307-48 (cataloging Ibn azms use of inference and other text-based interpretive strategies in his interpretive methodology).
13

See Ibn azm (d. 456/1064), al-Muall bil-thr, ed. Abd al-Ghaffr Sulaymn al-Bandr (Beirut: Dr al-Kutub al-Ilmiyya, 1988), 9:428 (citing a Prophetic adth outlining the sacredness of core Islamic values like the preservation of life and honor, and Qurn, 2:229, announcing that Gods laws (udd) are not to be transgressed). Ibn azm was the last well-known leader of the hir school (lit.: apparent or prima facie), so named because its jurists insisted on relying on the apparent meaning of foundational texts. On the history of the hir school and its methodology, the standard work is Ignaz Goldziher, Die hiriten (1884), trans., The hirs: Their Doctrine and Their History: A Contribution to the History of Islamic Theology, trans. Wolfgang Behn (Leiden: Brill, 1971); see also Sabra, Ibn azms Literalism, I:7-11 & notes 2-14 (and sources cited therein), II:307. See Ibn azm, Muall, 9:428; idem, al-Ikm f ul al-akm (Egypt: Dr al-Kutub al-Ilmiyya, 1968), 7:454-55.

14

15

See idem, Muall, 11:153; see also ibid., 9:428 (adding that there is no difference between udd laws and any other legal arena). 6

maxims, which he called rational presumptions (ul), were a means to subordinate revelation to reason rather than vice-versa. To be valid and to place revelation in its proper place as not only the primary, but the sole, source of law, any maxim had to have a textual basis.16 It would be fair to conclude that he would have been held the position that, if the udd maxim was valid, it was so not out of reasons dictates, but because it appeared in the texts of the laws canonical sources.17 Moreover, for Astarbd, other constraining interpretive principles took priority over the malleable maxim and severely curtailed its scope, barring jurists from exercising discretion and thereby reading their own preferences into the law. Like Scalia, Sh textualists found that antiquity justified the maxim (it seems to have always been there as a canonical text), but unlike Scalia, they held that its textual basis did not translate into room for wide application of the maxim. When placed side-by-side, we find that the realist and textualist approaches vary considerably and that the impetuses for the maxim in the American and Islamic contexts do as well. But on both sides, critics find common cause in their attacks on maxims, especially of the substantive kind. Both camps are intent on curtailing judicial discretion in deference to legislative supremacy presented in the text. It is of course a legal construct to speak of such deference given texts indeterminacy; the legal process always involves a measure of interpretation, whether involving the law as embodied

16 Muammad Amn al-Astarbd, al-Fawid al-Madaniyya (n.p.: Dr al-Nashr li-Ahl al-Bayt, [198-?], 106.
17

See al-urr al-mil, al-Ful al-muhimma, 3rd ed. (Qum: Maktabat Barat, [198-]), 388 (referencing the udd maxim as a prophetic adth); cf. idem, Wasil al-Sha, ed. Abd al-Ram al-Rabbn al-Shrz (Tehran: al-Maktaba al-Islmiyya, 1383-1389/[1963 or 19641969]), 28:48, no. 34,179 (quoting the udd maxim as a adth from Ibn Bbawayhs Faqh). 7

in texts or the facts to which those laws are supposed to apply.18 Insistence on judicial deference then is not about any actual purging of discretion and whether interpretation takes place no matter how purportedly clear or doubtful the text. Instead, it is about which interpretive philosophies Muslim jurists rely on in their claims of textual fidelity and whether their arguments resonate in their broader legal and societal cultures.19 Despite the attacks, just as lenity carries on in American law, so the udd maxim persists in Islamic law. The task for scholars seeking to understand the phenomenon and the persistence remains in both realms. History has demonstrated that simply identifying opposing legal maxims in either realm will not explain the enduring judicial usage of them, nor will it reveal the true locus of the conflict between those who doggedly invoke maxims and those who vigilantly attack them. Rather, these questions are best approached by examining larger questions of social and legal history as well as interpretive philosophy surrounding the use of legal maxims. We are interested not only in establishing that there is a conflict over maxims, but also in understanding why. Focusing on the juristic role in these affairs, we ask what rationales and presuppositions jurists draw on, and why, to justify the positions they have assumed vis--vis legal maxims.

18 That is to say that law does not live by doctrine alone. Legal rules and legal facts are mutually constituting. [For] as long as judges have the flexibility to characterize the facts of cases, a theory of interpretation of legal texts alone will fail to provide determinate answers. Kim Lane Scheppele, Facing Facts in Legal Interpretation, Representations 30 (1990): 42-77, 60. Cf. ibid. ([L]egal authority is not simply internal to legal culture, but pertains to the relationship between legal culture and the culture of the world into which it is an intervention. Legal decisions have authority to the extent that the stories judges tell resonate both in the world from which the disputes and conflicts come and in the specialized world of legal discourse.). 8
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It is with these concerns in mind that this study focuses on the juristic debates that reveal core presumptions underlying the legal interpretative process with respect to the udd maxim. The aim is to seek clues to the factors driving positions on the validity and utility of the udd maxim as a way of tackling the same questions involved in the wider realm of maxims. As I seek to demonstrate here, the conflict often has little to do with anything inherently contradictory in the maxims themselves. Rather, the rise of and debate over legal maxims stem from contextual factors of law and society together with moral anxieties facing jurists who operated in what they believed to be a system of divine law. Appealing to certain institutional arguments with reliance on particular theological presuppositions, Muslim jurists constructed competing theories of law to address questions about the nature and scope of interpretive authority in order to resolve or preempt doubt. Eventually, they embodied these positions in a series of pithy statements called legal maxims and collected them in treatises that offer a window onto the values and interpretive principles that stand at the core of Islamic jurisprudence.
II. History: The Rise and Pre-History of Legal Maxims Literature

The professionalization of distinct interpretive schools of Islamic law (madhhabs) in the 5th/11th century saw the rise of the earliest treatises on legal maxims.20 A Shfi judge in Baghdad, Q usayn al-Marwaz (d. 462/1069), is the first
20 There is much discussion and debate about the appropriate periodization of various phases in Islamic legal history. I designate the 5th/11th century as the professional period because it is by this time that jurists had grouped themselves into discrete associations and coalesced around distinct substantive doctrines and interpretive methodologies of law (which focused to a large degree on textual authority, with adth as central), by and large had settled on shared theological principles that undergirded their orientations to law, and had begun to develop and articulate the theories and contours of the schools to which they belonged. These phenomena are illustrated in this dissertation in recounting juristic discussions about the meaning and contours of doubt (shubha), which are elaborated and differentiated in the various schools of law beginning in this period at the point just after certain legal maximsas in 9

known jurist to record the handful of maxims that came to be identified as the universal maxims of Islamic law (qawid fiqhiyya [kulliyya]).21 Subsequent jurists Sunn and Sh alikesettled on and unanimously agreed upon five universal maxims, which they took to apply to all aspects of the law and, indeed, to reflect the very spirit of the law: (1) Harm is to be removed: al-arar yuzl, (2) Custom has legal consideration: al-da muakkima, (3) Hardship brings about facilitation: al-mashaqqa tajlib al-taysr, (4) Certainty is not superseded by doubt: al-yaqn l yazlu bil-shakk, and (5) Acts are to be evaluated according to the aims according to which they are executed: al-umr bi-maqidih.22 These maxims read more like broad statements of legal theory and meta-Islamic values than interpretive principles useful for the judge or jurist facing a real legal problem. Jurists found it difficult to apply the universal maxims to resolve doubt or to determine the outcomes of concrete situations. For that, they appealed to another set of
the udd maxim examined herebecame prophetic adths. For succinct studies presenting and describing major periods of Islamic law in the Sunn context, see Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005); ub Maman, Falsafat al-tashr f l-Islam, 5th ed. (Beirut: Dr al-Ilm lil-Malyyn, 1980 [1st ed. 1946]), 325-76 (English trans. Farhat Ziadeh, The Philosophy of Jurisprudence in Islam (Leiden: Brill, 1961)). For the standard work in the Sh context, see Hossein Modarressi, An Introduction to Sh Law: A Bibliographical Study (London: Ithaca Press, 1984).
21 Though his work is no longer extant, most scholars of legal maxims recording the history of the genre identify his work as the first to list four of these universal maxims, to which a fifth was addednamely, the principle stating that that actions are by to be evaluated according to the aims for which they were executed. See, e.g., Ab Abd Allh al-Maqqar (d. 758/1357), Qawid, ed. Amad b. Abd Allh b. amd (Mecca: Jmiat Umm al-Qur, Mahad al-Buth al-Ilmiyya wa-Iy al-Turth al-Islm, 198-), 1:133; Jall al-Dn al-Suy (d. 911/1505), al-Ashbh wal-nair, ed. Muammad al-Mutaim bi-llh al-Baghdd (Beirut: Dr al-Kitb al-Arab, 1998), 7. The fifth was belated likely because it came from a adth that referred to spiritual reward (innam l-aml bil-niyyt), not intention in law, which was not heavily or widely recognized in Islamic legal precepts (especially those outside of the Shfi ritual law context), which focused more on objective indicants of intent rather than intent itself.

See, for example, Maqqar, al-Qawid, 212; Miqdd al-Suyr, Nad al-Qawid al-fiqhiyya, ed. Abd al-Laf al-Khkamar et al. (Qum: Maktabat yat Allh al-Um al-Marash, 1403/1982-3), 90-114; Ibn Nujaym, al-Ashbh wal-nair, ed. Muammad Mu al-fi (Damascus: Dr al-Fikr, 1983), 1:17-19. For other divisions, see, e.g., Suy, Ashbh, 35, 201, 299, 337; Nir Makrim Shrz, al-Qawid al-fiqhiyya (Qum: Madrasat al-Imm Al b. Ab lib, 1416), 1:26-27 (five categories). 10

22

subsidiary, more particular substantive legal maxims (qawid fiqhiyya [juziyya]), which are the primary subject of this study. Legal scholars categorize these maxims in various ways. A common strategy is to divide maxims between textual principles of interpretation drawn from the field of jurisprudence and accordingly called interpretive canons (qawid uliyya), which discuss how laws relate to the sources and govern textual and linguistic principles of interpretation, and principles more closely related to the doctrinal substance of the law (fiqh). This latter group comprises the principles generally referred to as legal maxims without qualification (qawid fiqhiyya) andfor paritys sakemay also be called substantive canons. Grouped under the rubric of legal maxims are the five universal maxims together with more local ones that break down into further categories relating to particular aspects of law. Muslim jurists discussed this realm of general legal maxims in terms of several types that fall into two main categories covering substantive and procedural questions of law, plus a third that folded in some of the interpretive rules from jurisprudentialinterpretive canons. The first category of substantive maxims (qawid fiqhiyya) actually encompasses both rules of thumb that have a narrow range of application as well as interpretive principles with wide application over certain substantive areas of law. Jurists typically refer to the former as presumptionsexpressions of settled doctrines relating to particular areas of law (bi, pl. awbi, and in early Islamic law al, pl. ul). For example, a maxim stating that the child belongs to the marriage bed is a presumption used to determine paternity when there is no other textual or rational way of resolving doubts about who fathered a child. The judge need not deliberate

11

about specific aspects of the law to apply the rule; whenever he can ascertain or suppose the fact of a marital relationship, he designates paternity on its basis.23 In that sense, such presumptions are self-executing. In addition, the rule applies only to family law (albeit with implications for criminal, inheritance, and other areas of law), and this is typical of the narrow scope of these presumptions. The table below summarizes the major types of maxims that arise in Islamic law. The legal maxims with which we are concerned mostly fall on the right side of the divide, though interpretive principles from the left side sometimes arise on the right. The categorynot recognized as an independent category per se by medieval jurists can be called interpretive-substantive maxims, of which the udd maxim is a good example. It requires jurist to use interpretive principles in deliberating about principles of substantive law like the rules of narrow construction.
Types of Islamic Legal Maxims Interpretive legal maxims: qawid uliyya Text-based Extra-textual interpretive presumptions: [textual [source[Sunn law: ul & other & critical interpretive mechanisms, reference canons] e.g., equitable principles canons] such as istisn & istil] [Sh law: ul amaliyya] Substantive legal maxims: qawid fiqhiyya Interpretation/derivation Application specific maxims, presumptions: qawid fiqhiyya, qawid, juziyya, awbi, ul [interpretivesubstantive maxims: qawid fiqhiyyauliyya] procedural & evidentiary maxims: qawid qaiyya

The udd maxim is an example of the latter two sub-categoriesinterpretive principles governing certain substantive areas of law as well as procedural and
23 Incidentally, judges used this paternity maxim to avoid udd punishments for zin by creating the legal fiction that that apparently illicit sexual relations occurred within a valid marital relationship; the rule seems to have been motivated and justified by societal values on preserving lineage and community relationsrelated to but directly extending from the motivating factors for applying the udd maxim itself, as discussed below. 12

evidentiary questions.24 This maxim covers the whole ambit of criminal law and interpretation. It is different from the other more narrow presumptions in that it is not self-executing given certain inputs. Instead, in calling on jurists to interpret ambiguous criminal laws narrowly, it allows them to exercise a wide range of discretion in determining what constitutes doubt and when that doubt requires avoidance of udd crimes. It also raises questions about the concept of doubt (shubha) and the rationales justifying stingy readings whenever a certain level of doubt was in play. These rationales are important because they typically guide and limit application of the rule; they also explain the diversity of opinions and dissent from jurists who disagreed about whether and when to apply the udd maxim. The second category is procedural maxims (sometimes called qawid qaiyya literally, adjudicatory maxims), which covers the laws of evidence and judicial procedure. The udd maxim is an example of a principle from this category too. It requires jurists to assess such factual matters as criminal intent, the sufficiency of the evidence to establish a crime, and the requisite burden of proof to secure a conviction in assessing and resolving doubt. Whenever there was doubt in any of these areas or

24 Additional tools for legal interpretation, hortatory statements of propriety, and popular sayings are related to maxims but distinct from them in their technical sense as summarized above and elaborated on by other scholars of legal maxims. In the primary sources, these additional statements are sometimes confused with or referred to by the designation of maxim, even by scholars of maxims, who include under that designation takhrj al-ul al l-fur and ul (presumptions, often noting specificities of one school in contradistinction from others), ashbh wal-nair (discussions of similar cases), furq (statements identifying and distinguishing similar cases), etc. It is beyond the scope of this project to detail the meaning of each and distinguish which deserves to be counted as a maxim; but it is important to note that much more than legal maxims proper are often conflated with that label. 13

others that involved issues of criminal culpability, jurists used the udd maxim to determine how to resolve doubt.25 The udd maxim offers a particularly valuable lens for looking into the larger realm of legal maxims because it is cross-cutting in several directions. Taken on the whole, the maxim is about interpretation. Jurisprudentially, it counts as a legal maxim that has both substantive and procedural aspects (qawid fiqhiyya and qawid qaiyya). It often invokes the use of maxims from the realm of interpretive canons (qawid uliyya) too, as it requires jurists to sometimes assess the textual imperatives in their deliberations about the existence of doubt in the very definitions of the criminal law that are supposed to be rooted in the foundational texts. The maxim brings into play matters of theology too, as matters of interpretation in Islamic law implicitly entail or rest on certain theological suppositions. Theology was worldview. As such, it drove interpretive philosophies of law. That is, theological orientations informed juristic determinations about the scope of authority and human discretion to operate in the legal-interpretive realm. In a legal system that posited a theory of divine legislative supremacy, the notion of judicial subservience had special resonance with Muslim jurists anxious about submitting to God and following the moral imperatives outlined in foundational legal textsthe Qurn and Sunna. But the texts left tremendous leeway for the exercise of discretion, and a coherent legal system required some means of filling the gaps to regulate that

25 For an analogous discussion and definitions of American legal maxims divided into categories of substantive, textual, and reference canons, see William N. Eskridge Jr., Philip Frickey, and Elizabeth Garrett, Legislation: Statutes and the Creation of Public Policy, 3rd ed. (St. Paul, MN: West, 2001), 818-19. 14

discretion on principled and predictable bases. This was the task to which jurists employed legal maxims. Their usage of these maxims was extremely important to the whole edifice of Islamic law, because it was a means of moving from theory to practice. The main questions at stake were the following. Jurisprudentially, what was the scope of human discretion to interpret the law? Institutionally, who had the legitimacy and competence to do so? Theologically, were judges to presume a state of innocence or non-liability when it came to assessing knowledge of the law and criminal liability? The udd maxim served almost as a bellwether for how Muslim jurists approached these questions. (There were certainly other factors at play, and this discussion is not to claim that the udd maxim determined it all. Rather, it is to assert that we are able to better understand how legal disputes crystallized by examining the maxim.) Jurists internal discussions revealed attempts to systematize the law by using the maxim as a guiding principle that took on twists and turns as they debated its contours and as it expanded and contracted. Those discussions had external purposes and revealed concerns relating to political authorities, who also claimed authority to regulate violence. As for substantive law (fiqh), the udd maxim came to apply expansively to doubts concerning all types of crimes and punishments. I have labeled it the udd maxim for its mention of udd and the centrality of that formulation in juristic discussions of udd crimes and punishments. But the maxim goes beyond strictly udd contexts to other areas of criminal law.26 As we will see, jurists applied the
26 There is no specific designation for the maxim in medieval works, which tend to repeat the name of the maxim. The original sense of udd did not refer to fixed criminal laws, though by the maxim emerged 15

maxim to doubts involving retaliation for murder and personal injury (qi) and discretionary punishments (tazr) as well.* Finally, in the courtroom, the maxim showed up just as prominently. As the maxim helped define the legal-doctrinal contours of the substantive law, it also molded Islamic criminal procedure. In sum, the udd maxim takes on shades of all categories of maxims: interpretive, substantive, and procedural. It involves questions of theology; it relates to institutional relations between jurists and state; and it speaks to issues of law and society that involve questions of status, crime, and the authority to accommodate or regulate either.
III. Function: Concepts of Doubt and Assertions of Authority

As for the specific areas of investigation, rather than focus on the point at which legal maxims emerged as a genre of independent literature in the late medieval Islamic period (especially the 7th/13th through 10th/16th centuries), this dissertation offers a pre-history of the field. The interest here is not in the intellectual-historical question of how and why maxims arose in this later period, but rather in the circumstances and doctrines leading up to and informing or defining that rise. In other words, the aim is to follow the trajectory of the udd maxim in the early period until the rise of legal maxims literature as a way of examining the history, function, and debates concerning legal maxims in late antique and medieval Islamic law and society.

in the first few decades of Islams rule, it no doubt did. Yet, the nature and content of those laws had not settled; as such, the udd maxim was not restricted to what later became the short list of udd crimes, and it extended to laws of retaliation, acts of disputed add status, and discretionary punishments. The common name used in modern Islamic legal maxims literature is the avoidance canon (qidat al-dar); I do not use this phrase because it is not descriptive of the udd context to which the maxim applies. * For a brief survey of Islamic criminal law, see the Note on Islamic Criminal Law below. 16

The first two chapters cover themes in adth, law, and society from the earliest period, stemming from Prophetic times through the third century of Islamic legal history. These studies aim to develop a panoramic view of the udd maximits development, precedent-setting force, and socio-political logic. The next two chapters examine the complex and varied meaning that jurists built up around doubt as a legal doctrine. The early concept of doubt from the first three centuries was limited and played a role mostly in the courtroom on case-by-case bases typically arising from evidentiary concerns. The maxim was only gradually folded into the normative legal literature after jurists seeking to clarify and systematize the law had laid out the elements of criminal law and procedure based on existing texts. We will see, however, that with the professionalization of the legal schools in the 4th/10th and 5th/11th centuries, jurists developed a robust theory of ambiguity. Though the udd maxim was accepted by the majority of Islams multiple schools of law Sunn and Sh alikethe juristic theories about the type of doubt that did and did not trigger udd avoidance reflected the methodologies and value commitments particular to each legal school. The final two chapters will examine shades of opposition to the maxim. Strictly textualist and traditionalist Sunns (anbals and hirs) together with their Sh counterparts (Akhbrs) were not at all enthusiastic about the udd maxim, and the more strict camps firmly opposed it. The chapter on Sh regard for the legal maxim will use these debates between traditionist and rationalist jurists to highlight how differences in theological commitments resulted in radically different interpretive philosophies of law that impacted the function and scope of legal maxims. Philosophies

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that sought to restrict judicial discretion through reliance on text conceived of an extremely narrow scope for reason vis--vis revelation, seeing the exercise of reason as a threat to the strong principles of divine legislative supremacy. Accordingly, they drove opposition to the udd maxim and, by extension, any other substantive legal maximcausing their rationalist counterparts to redouble efforts to defend it. * * *

With these considerations in mind, this dissertation makes interventions in fields of Islamic legal history and comparative law through insights offered in a broadly comparative framework. The approach is considerably interdisciplinary, applying insights from law and studies of legal maxims and jurisprudence in American law to themes and methodologies of area studies, history, and Islamic law. As such, it diverges sharply from many studies in Islamic law and the few studies of legal maxims. Contemporary English-language scholarship on Islamic legal maxims is extremely sparse. To date, there have been no detailed studies of the field and only a handful of useful articles in recent years providing short overviews and raising preliminary questions about the history of legal maxims mainly in Sunn law and mainly by two scholars.27 In Arabic and other Near Eastern languages, there has been an explosion of works on legal maxims in recent decades, as demonstrated in an appendix, but they largely take a traditional approach. Like the classical treatises of legal maxims, many of these collections identify core maxims, discuss legal bases for
27 See Mohammad Hashim Kamali, Legal Maxims, in Sharah Law: An Introduction (Oxford: Oneworld, 2008), 141-61; idem, Legal Maxims and Other Genres of Literature in Islamic Jurisprudence, Arab Law Quarterly 20, 1 (2006): 77-101; see also Wolfhart Heinrichs, art. awid Fihiyya, EI2-Supplement (Online Edition: Brill, 2008); idem, Qawid as a Genre of Legal Literature, in Bernard Weiss, ed., Studies in Islamic Legal Theory (Leiden: Brill, 2002) (and sources listed therein). For a translation of a Persian article providing an overview of legal maxims in Sh law, see Muaf Muaqqiq Dmd, The Codification of Islamic Juridical Principles, ikmat 1, 1 (1995): 89-107. 18

each, and provide some examples of application in fiqh works in particular or across various schools of law. Some studies have focused on individual maxims, including a few on the udd maxim itself.28 But these works differ from the present study because they generally detail a chronology of the major maxims literature and explain the concepts without addressing surrounding issues in intellectual and social history. My work emphasizes the interaction between legal thought and socio-political changes as well as how philosophy of law reflected diverse theological and societal values of Muslim jurists in the medieval period. In an attempt to reconstruct the varied aspects of the history and concepts of Islamic legal maxims generally through the udd maxim particularly, this work draws on a wide range of sources read critically with an eye to uncovering the role of legal maxims in both law and society. I draw on the earliest extant sources typically used for Islamic law (both Sunn and Sh)29adth studies, legal treatises, jurisprudential works, and fatw collectionsand add consideration of legal maxims discussions in both those early materials and in later independent collections of maxims. I combine
28 I am aware of four articles and four monographs. The articles include Muammad Bahrm, Barras va tall-i fiqh va uqq-yi qida-i tudra al-udd bil-shubaht, Ddghh-yi uqq 5-6 (1376): 19-56; Msaw Bujnrd, D qida-i fiqh: qida-i tudra al-udd bil-shubaht, Falnma-i ddghh-yi uqq 8 (1365): 11-36; Muammad Muammad Gln, shin b qida-i al-udd tudra bil-shubaht, Majalla-i qa va-uqq-yi ddgustar-yi Jumhr-yi Islm-yi rn 5, 15-16 (1375): 25-30. The monographs include Sad Manr, Qavid-i fiqh: bakhsh-i jazfiqh-i tabq-yi qida-yi dar (Tehran: Tadbr, 1375/[1997]); Sad b. Misfir al-Daghghr al-Wdi, Athar al-shubaht f dar al-udd (Riyadh: Maktabat alTawba, 1998); Aqla usayn, al-Shubaht al-musqia lil-udd aw al-urf al-mukhaffifa wal-adhr al-musqia lil-uqbt al-mutarattiba al jaraim al-udd: dirsa fiqhiyya muqrina al l-madhhib al-Sunniyya (Beirut: Dr Ibn azm, 2003); Muammad asan al-Rabbn, Qidat al-dar (Qum: Muassasat al-Nashr al-Islm alTbia li-Jmiat al-Mudarrisn bi-Qum al-Musharrafa, 1428). Exceptionally, a recent article that takes a law and society approach is that of Maribel Fierro, Idra al-udd bi-l-shubuht: When Lawful Violence Meets Doubt, Hawwa 5, 2-3 (2007): 208-38. Her theories about the udd maxim and what they reflect about legal maxims generally are discussed in the text of the dissertation. I focus on the major Sunn and Sh schools, with some reference to minority schools where significant (including the hir, Zayd, and Isml traditions). For space considerations, I have omitted reference to the Ib school. 19
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these sources with material useful for placing legal themes in the surrounding contexts of social and intellectual historybiographical dictionaries, heresiographal works, historical chronicles, literary sources, and theological works. From these sources, I also identify and analyze the legal casesas jurists from the first three centuries understood themcentral to creating a jurisprudence of doubt related to the udd maxim. While the period covered spans centuries, initial emphasis is on the early (preprofessional) period of Islamic law, the 7th through 9th centuries, when the maxims first arose and developed most drastically. This first half of the dissertation focuses on both social and intellectual historical themes; the remainder highlights the intellectual turns taken by the maxim in Islamic laws professional period, stretching from the 10th through 16th centuries. The result is a composite contribution intended to address existing gaps in studies of Islamic law relevant to this field and to comparative contexts. As far as these gaps are concerned, my work first demonstrates the centrality of legal maxims to judicial deliberations in Islamic law. Relevant scholarly literature typically adopts a formalistic approach to Islamic law that encompasses two fields Islamic legal theory (ul al-fiqh) and positive law (fiqh)without accounting for the significant use of legal maxims in moving from the former to the latter. By detailing how jurists make this move in criminal law, this study adds a third prong to the bipartite model of Islamic law, further detailing the mechanisms of interpretive processes. Legal maxims, especially as seen in the jurisprudence of doubt, represent the flexibility and realm of guided discretion through which the law expands and contracts to accommodate novel cases and to adjust to new circumstances.

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Second and relatedly, I present an alternative model to a common view of Muslim jurists as formalist-textualists who faithfully interpreted the law; this study demonstrates how, in many ways, they constructed the law through the use and expansion of legal maxims. Finally, I aim to show that these maxims and the presentation of them in the legal maxims treatises represent matured principles of Islamic law and moral values after long periods of deliberation and change as jurists and political officials negotiated shared but slender lines bordering issues of authority, discretion, and the rule of law. I end with a final section that will offer tools to help place the udd maxim in the larger context of legal maxims and to facilitate future research in the field. An appended bibliography of legal maxims will provide a chance for the reader to see how and where the udd maxim fit into the historical development of legal maxims literature. Currently, there are no such catalogs of this literature that display the wideranging scope of the field. In English, there are no detailed studies of maxims literature and precious few resources available. This, despite the increasing interest in maxims resulting from growing recognition of their importance for Islamic law and history, for ongoing studies of Islamic law, and possibly for the future of Islamic legal thought. As an end-point to the dissertation, this list will provide a starting point for future studies in the field.

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*A Note on Islamic Criminal Law In focusing on the udd maxim as a model interpretive tool, this dissertation necessarily examines issues of Islamic criminal law that require close familiarity with the substance and procedure of that law. While this dissertation does not attempt to offer any detailed overview of Islamic criminal law, a short overview of its main contours will be helpful to the reader (though not essential, as I aim to introduce the relevant concepts in-text as they arise in the discussions). The following discussion presents a brief primer on the major types of crimes, the distinctions drawn between udd and other criminal laws, and the rationales on which jurists appealed to explain and justify the relevant rules of fiqh.30 The term udd refers to both the major crimes and their associated punishments in Islamic criminal law.31 According to Islamic legal theory, these crimes are specified and the punishments fixed by the Lawgiver in the foundational sources of law, namely, the Qurn and the Sunna. Moreover, only the Lawgiver can define the crime and determine the associated punishment, so it is impermissible for anyone to exceed or decrease either.32 In other words, the theory goes, God is the supreme

30 For fuller treatments of Islamic criminal law and procedure, the standard classical references with some of the best treatments include Abd al-Qdir Awda, al-Tashr al-jin al-Islm (Beirut: Dr al-Kitb al-Arab, 1968); and Ramss Behnm, al-Naariyya al-mma lil-qnn al-jin (Alexandria: Munshat alMarif, 1968). For excellent English language resources, see now Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), cf. Cherif Bassiouni, ed., Islamic Criminal Justice System (London; New York: Oceana Publications, 1982).
31

See, e.g., Ab l-asan al-Mward, Kitb al-udd min al-w al-kabr, ed. Ibrhm b. Al anduqj ([Beirut]: n.p., 1995), 1:100-01 (explaining that the fixed criminal laws are called udd because the predefined acts and predetermined [madd] sanctions prevent or deter people from committing specified crimes, just as the outer borders (udd) of a house prevent trespass, steel (add) is unyielding metal, and doorkeepers (addd) can prevent exit and entry). Ibid., 1:101 (citations omitted). 22

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legislator in Islamic law, expressing His will through scripture and prophetic practice. Jurists are mere faithful agents charged with simply interpreting and applying the law. While in theory udd laws came from God and humans were barred from making or altering these laws, the matter was less clear-cut in practice. Jurists found it difficult to determine the legitimate application or scope of interpretation for udd because of the often indeterminate nature of Islamic legal texts in both form and substance. The Qurn was a static text but sparse on details of law; the more detailed Sunna was known through a series of scattered adth texts of often dubious authenticity. The absence of a single code or document clearly detailing the law always presented questions to jurists initial inquiry as to just what the law was. Case in point: Muslim jurists did not agree on what counts as udd laws. The jurists do agree that Islamic law specifies at least four udd crimes: illicit sexual relations (zin), defamation (qadhf: specifically, slanderous accusations of sexual impropriety), theft (sariqa), and intoxication (shurb al-khamr). Most also treat apostasy (ridda) as such a crimethough there is no (this-worldly) Qurnically specified punishment for it. And they typically treat rebellion and highway robbery together (irba or qa al-arq) under the same general rubric of criminal law. Rebellion certainly must be regarded as a separate category because jurists view it as a category of political resistance, which is not itself banned. Rather, the Qurn bans highway robbery or acts of domestic terrorism.33 There is often a question as to the line dividing terrorists from legitimate rebels; though juristic treatments of these two categories were grouped together, they fall outside of their own technical definition of
33 For a discussion with this rendering of the term, see Sherman Jackson, Domestic Terrorism in the Islamic Legal Tradition, The Muslim World 91, 3 & 4 (2001): 293-310. 23

fixed crimes and fixed punishments. The sources specify alternative punishments for convictions. Further, jurists developed a highly nuanced jurisprudence on the legality of rebellion and the treatment due to rebels in a sophisticated line of thought that reflected Qurnic ideals and the historical circumstances of political upheaval and uncertainty in the early Muslim community.34 By contrast, jurists treat murder as only a quasi-add crime; it is a grave offense that is punishable by death, but it involves some degree of discretion on the part of the victims family to pardon the offender and accept a set amount of financial compensation instead. This may be surprising to the reader familiar with modern laws of murder as the quintessential crime. But the medieval Islamic conception comes out of explicit Qurnic regulations of existing practices and corresponds to medieval laws of talion (for murder and other personal injury) generally, which have been likened to tort law.35 The short list of four or five crimes expanded and contracted, as the criminal elements and scope of the laws often depended on the constructions that jurists gave
34 See generally Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press 2001).
35

For a discussion drawing the comparison between talion and tort in the Islamic law context, see J.N.D. Anderson, Homicide in Islamic Law, Bulletin of the School of Oriental and African Studies 13 (1951): 811. In Arabic, the laws governing murder and personal injury are qi, which Islamic rules regulate and administer at the request of the victim or the victims family. State regulation replaced and attempted to ameliorate pre-Islamic practices of private administration that often fueled ongoing tribal wars. See Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 38-53 (The origins of this part of the law go back to the pre-Islamic custom of feuding, which allowed revenge for killing and bodily harm on all members of the tribe of the perpetrator. This often resulted in feuds that could last for generations. These feuds would cease if the victims family would accept compensation, to be paid collectively by all members of the tribe. With the advent of Islam, this institution of revenge was drastically modified. The most important reforms were that revenge in kind could only be taken on the person of the offender and only after due trial.). For the Qurnic regulations, see Qurn, 4:92 (outlining the laws of homicide, including compensatory rules for accidental homicide), 5:45 (permitting retaliation for personal injury but encouraging financial compensation in its stead: Whoever forgoes [physical retaliation in the way of charity] it shall be expiation for that person.), 2:178-79 ([T]here is life for you in qi, oh people of understanding, so that perhaps you might learn God-consciousness [also: restraint].). 24

them. At times, juristic definitions of udd laws encompassed acts with punishments not explicitly mentioned in the texts of the Qurn or Sunna. The two most widespread instances of that are apostasy and highway robbery. The foundational sources mention these acts, but do not attach defined punishments to them. Many jurists nevertheless counted them as udd crimes, though some others rejected that categorization. In addition, jurists expanded the scope of udd laws by construing the texts narrowly or broadly. For instance, some jurists counted bestiality or sodomy under the rubric of udd sex crimes while others restrict the udd label to illicit sex acts involving humans and between members of the opposite sex. Most jurists regarded sacrilegious statements against the Prophet as defamation tantamount to apostasy, though others restricted the meaning of apostasy to explicit denials of the existence of God or the prophecy of Muammad. And so on.36 The punishments for all of these crimes are severe, ranging from reprimand, fines, and shaming to imprisonment, corporal punishment, and death.37 Crimes that did not fit under the udd rubric were those that were unclearly specified in the sources and so involved some element of discretion. As noted above,
36 For classifications of crimes amongst jurists from the period of the earliest works of law in the 8th century, see, e.g., Abd Allh al-Jubr, Fiqh al-Imm al-Awz (Baghdad, 1977), 2:30 (listing sex crimes, defamation, intoxication, theftthe four agreed-upon crimesplus apostasy (ridda) and highway robbery (qa al-arq)). For classifications as they had developed in the 12th century, see Ab mid al-Ghazl, alWajz f fiqh al-Imm al-Shfi, ed. Al Muawwad and dil Abd al-Mawjd (Beirut, 1997), 2:163 (listing all seven); Ibn Rushd al-afd, Bidyat al-mujtahid (Beirut: Dr al-Fikr, n.d.), 2:297 (listing eight categories the seven mentioned plus retaliation (qi) for murder or personal injury). For an overview of medieval criminal law classifications, juristic debates about which offenses count as udd laws, and contemporary accounts assessing these classical categorizations, see Peters, Crime and Punishment, 60-65. See Peters, Crime and Punishment, 30-38 (listing the penalties as follows: reprimand (tadb), fines [ghurm, ursh], public exposure to shame (tashhr) [which may include shaving the head and parading around town on the back of a donkey], banishment (nafy, taghrb), imprisonment (abs), flogging (jald), amputation of the hand or foot in some cases (qa), cross-amputation [of the right hand and left foot] (al-qa min khilf), retaliation (qi) or financial compensation (diya) for personal injuries and murder; the death penalty (qatl) [through various methods, including lapidation (rajm) for adultery], sometimes in combination with crucifixion (alb); and other non-punitive legal consequences (e.g., a bar from testifying in court)). 25
37

this included the laws of retaliation (qi), because this category permitted discretion to the victims family as to the extent of the offense.38 The rest of the non-udd criminal laws comprised a catch-all category of acts that were considered offenses but never defined as such in the sources. A combination of prior practices (attributed to Sunna) and necessity allowed the political authorities to prosecute and attach discretionary penalties (tazr) to these acts.39 Jurists defined and specified sentence ranges for these acts too, in attempts to counter-define the udd laws. Jurists did not see their interpretive activities as juridical legislation. To the contrary, they staunchly subscribed to the doctrine of legislative supremacy and saw udd laws as authorized by nothing less than divine origins. Where a textualist or common law lawyer might see juridical legislation and common law crimes, most Muslim jurists conceived of themselves only as restraining their own discretion and that of the political authorities in deference to the legislative supremacy of God. Yet, the indeterminate nature of the texts, ambiguities surrounding the definition of the specified crimes compared to real-world acts, and the high stakes of criminal convictions drove them to develop firm criteria for defining the law. In short, despite or rather, because ofthe doctrine of divine legislative supremacy, ambiguity and severity in udd laws made it crucial for jurists to refine the definitions and theory of Islamic criminal law and thereby construct it in particular ways. They not only had to
38 Only a minority of jurists placed the laws of qi in the udd category. See, e.g., Ibn Rushd al-afd, Bidyat al-mujtahid, 2:577; Badr al-Dn al-Ayn, Binya, 6:190 (Muammad Umar ed.; Beirut, 1990) (noting that Bazdaw does so in his Mabs).
39

Mward held that unspecified crimes were punishable at the discretion of a presiding judge according to the policy preferences of the political authority (siysa) if they constituted behavior that would compromise public order or public interest (malaa) that the caliph was charged with upholding. See Mward, al-Akm al-sulniyya, ed. Muammad Fahm al-Sirjn ([Cairo]: al-Maktaba al-Tawfqiyya, [1978]); cf. idem, w, 2:1022 (maintaining that the ruler must apply tazr punishments in instances that affect the public interest). 26

confront political excesses in regulating violence and distinguish udd laws from other criminal laws conceptually, but they also had to devise some principled means of arguing that they were upholding both the letter and the spirit of Islamic criminal law in a way that paid due deference to the Legislator. It is against this backdrop that the udd maxim emerged.

27

CHAPTER 1 Islamic Legal Maxims as Substantive Canons of Construction: udd-Avoidance in Cases of Doubt
Indeed, avoidance of udd in cases of doubt Inna dara l-uddi bil-shubaht Is a adth related by all transmitters of reputed clout. La-adthun rawhu kullu l-thiqt.1 I.

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 politys fourth caliph Al, Medinas 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 Al, 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. Al turned to the condemned man, incredulously. What made you confess to a murder that you did not commit?! he asked. The man explained that he thought that Al 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. Immediately 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. He gave up, and confessed to the obvious, deciding to leave the matter in Gods hands. The 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 approaching. 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 up, because he did not want the blood of two men on his hands.2
1 Ab l-asan al-Shantarn, al-Dhakhra f masin ahl al-Jazra, ed. Isn Abbs (Beirut: Dr al-Thaqfa, 1979), 7:355-57 (s.v. al-akm Ab Muammad al-Mir). Ibrhm b. Hshim al-Qumm (d. mid-3rd/9th c.), Qay Amr al-Muminn Al b. Ab lib, ed. Fris assn Karm (Qum: Muassasat Amr al-Muminn, 1382/[2003]), 88-89, 238 (paraphrased). Both Sunn 28
2

In answer to the question of when a judge knows when to apply a criminal sanction, most legal systems require knowledge beyond a reasonable doubt, that is, virtually incontrovertible proof of the crimes 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 the udd maxim, which directs judges to avoid (imposing) fixed criminal sanctions (udd) in cases of doubt or ambiguity (idra l-udd bil-shubaht). The udd 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

and Sh scholars cite this as an example of clever udd jurisprudence. See Ibn Qayyim al-Jawziyya (d. 751/1350), al-uruq al-ukmiyya, ed. Muammad Jaml Ghz (Cairo: Mabaat al-Madan, 1978), 82-84 (quoting Qay Al and Ajib [akm Amr al-Muminn = Qay Al, as given in the edition of Musin Amn al-mil, Ajib Akm Amr al-Muminn Al b. Ab lib ([Qum?]: Markaz al-Ghadr lil-Dirst alIslmiyya, 2000)]); al-urr al-mil (d. 1104/1692), Wasil al-Sha, 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, The 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, The Origins of the Adversary Criminal Trial (Oxford; New York: Oxford University Press, 2003), 334-36 (detailing the methods by which court officials in England avoided prosecuting criminals as a precursor to the formalized rule of lenity). See United States v. Santos, 553 U.S. __ [128 S. Ct. 2020], *6 (2008) (The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.) (citations omitted); United States v. Wiltberger, 18 U.S. 35, 43 (1820) (The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.). Cf. Eskridge et al., Legislation, 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). 29

witness testimony.5 But an evidentiary doubt arose as soon as the real perpetrator stepped in. Al released the first man and pardoned the secondperhaps because the facts surrounding the case had become irresolvably doubtful 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 contemporary juristsboth Sunn and Sh view the udd maxim as a sound prophetic adth.6 Its prophetic pedigree is significant because adths form an authoritative source of Islamic law. They are taken, alongside the Qurn, to legislate mandatory fixed sanctions for certain grave offenses. It is the ability to appeal to the Prophets normative instructions that provides jurists with firm legal bases for adjudication, especially in the sensitive area of criminal law. Thus, the prophetic provenance of the udd maxim may be considered to have facilitated, indeed anchored, the jurisprudence of Islamic criminal law. But the maxim was not always prophetic. adth scholars of the early period (i.e., the first three centuries of 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 adth. What does this say

5 Mliks hold that guilt can be established by strong circumstantial evidence, as in pregnancy of an unmarried woman as evidence of fornication or adultery (zin). On evidentiary rules, see Maman, Falsafat al-tashr, 325-76; and the sections on evidence in general works of Islamic criminal law, e.g., Awda, al-Tashr al-jin; Behnm, al-Naariyya al-mma; Cherif Bassiouni, ed., The Islamic Criminal Justice System (London; New York: Oceana Publications, 1982).
6

See below, pp. 30-34. NB: Though the term Sh can refer to Zayds, Ismls, and Twelver or Ithn Ashars; and although all can be considered in some sense Sh and the latter two Imm, for shorthand, I use the term Sh (without qualification) to refer to the Twelver-Imms, who comprise the majority of the Sha. When mentioning other Sh groups, I refer to them by the designations for which they have become best known, i.e., Ismls and Zayds. 30

about the legal basis for the practice of udd-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 linguistic rules of thumb. An example of a linguistic rule is that jurists should follow the plain meaning of the text unless clear indicators require a departure from that meaning. By contrast, substantive rules impose interpretive requirements, such as narrow construction, for certain areas of law such as criminal law. In this context, Islamic legal theory specifies that only God can impose and has imposed fixed punishments for certain grave offenses; it follows that udd punishments cannot apply without a clear statement that a certain activity falls within the ambit of the prohibition.7 Moreover, the extremely harsh nature of udd punishments marks them as deterrents against moral offenses.8 In significant ways, the udd maxim captures these ideas of divine legislative supremacy and deterrence theory, and translates them into a canon of narrow construction for matters relating to criminal law. This essay traces the transformation of the maxim from its earliest appearance to its later conception. I first examine the maxim as it appears in adth collections during the first three centuries of the Hijra, then I assess its parallel appearances in
7 See, e.g., Ab l-al al-alab, al-Kf f l-fiqh, ed. Ri Ustd (Ifahn: Maktabat al-Imm Amr alMuminn Al al-mma), 404 (noting the Sh view that udd violations are acts known rationally to be major moral offenses (qabi) that also warrant a punishment as specified by God); Mward, w, 1:101 (citing the similar Sunn view of a 3rd/9th century scholar, Ab Muammad b. Qutayba (d. 276/889), that udd are punishments with which God deters people from committing prohibited [acts] and encourages them to follow His commands). See also the overviews of Islamic criminal law listed in n. 3.
8

See, e.g., al-Sharf al-Murta, Intir, ed. Muammad Ri al-Sayyid asan al-Kharsn (Najaf: al-Mabaa al-aydariyya, 1971), 252; Mward, w, 1:99. 31

juristic works, where citations of it differ significantly. Only after this period do adth collectors and jurists alike begin to ascribe prophetic origins to the maxim. Accordingly, I examine later adth collections only to uncover entirely new versions of the maxim as a adth now attributed to the Prophet. Finally, I turn to the later juristic sources to consider new legal conceptions and applications of the maxim. It is here that we can readily observe the firm entrenchment of the maxim in Islamic criminal jurisprudence, after it was transformed from an anonymous principle into a rule that was regarded as both a central canon for resolving legal doubt and a prophetic adth.
II. The udd Maxim as a adth?9

A. Early adth Collections adth scholars and critics of the first three centuries of the Hijra adduce several versions of the udd maximnone of them in the form that came to be popularized as above. Only two of the six canonical Sunn adth collectionsthose of Ibn Mjah and Tirmidhrecord a version. The earlier collections of Abd al-Razzq al-ann and Ibn Ab Shayba contain an additional five.10 All attribute the maxim to various Companions and to early jurists.11 With one exception, none of these scholars seriously thinks that this was a prophetic statement. The single attribution to the Prophet is a weak one,
9 Detailed references for each adth version of the udd maxim, along with the collections in which they appear and the full chains adduced for each are listed in the Appendix. This section will reference only works and the death dates of traditionists mentioned in the text where it is specifically relevant to the argument. The Muannafs of Abd al-Razzq and Ibn Ab Shayba are illuminating because they record statements from their teachers and from earlier jurists; they do not confine themselves to authenticated prophetic reports as the canonical collections mainly attempt, especially the principal two, the as of Bukhr and Muslim. They also preserve records of 1st/7th- and early 2nd/8th-century written works and teachings. See Harald Motzki, Die Anfnge der Islamischen Jurisprudenz. Ihre Entwicklung in Mekka bis zur Mitte des 2./8. Jahrhunderts (Stuttgart/Leiden: Brill, 1997), trans. Marion Katz, The Origins of Islamic Jurisprudence: Meccan Fiqh Before the Classical Schools (2001), esp. 51-73.
11 That is, Companions Umar, isha, Ibn Masd, Mudh b. Jabal, and Uqba b. mir, as well as jurist Ibrhm al-Nakha (d. ca. 96/717) and traditionist Ibn Shihb al-Zuhr (d. 124/742). See Appendix. 10

32

according to Amad b. anbal and most other traditionists.12 The other four canonical collectors do not mention the maxim. And there appear to be no records of the statement in Sh sources of the time.13 In sum, no adth collector of the early period reliably traces the udd maxim to the Prophet. Moreover, there is no record at all in extant adth compilations from the first three centuries of what was to become the standard version of a common prophetic maxim (idra l-udd bil-shubaht).14 Only laterbeginning in the mid4th/10th centurydo we find attributions of the maxim to the Prophet, and even then, not reliably.15 What we are left with then is this picture: In collections of traditions from the first three centuries of the Hijra, we find versions of the udd maxim that differ from what would become the standard formulation. Few thought those versions to be of prophetic origin and none thought the standard formulation to be prophetic. It is not that no one knew of the standard version in that early period. As elaborated below, that version circulated simultaneously amongst scholars familiar with versions
12 Of the adth scholars surveyed here, Ibn Mjah is the only one who attributes the report to the Prophet (by way of Ab Hurayra); Amad b. anbal and later adth critics reject this version (or its attribution to the Prophet) as inauthentic because of a problematic link in the chain of transmission. See Amad b. anbal, Musnad, ed. Abd Allh al-Darwsh (Beirut: Dr al-Fikr, 1991), 5:416; see also Appendix. That is, not as a adth; it is apparent, however, that the maxim is recognized through language echoing the standard formula at least as early as the 3rd/9th century. See Qumm, Qay, 253-54 (quoting Al rulings that the add does not apply to a man accused of illicit sexual relations: udri anh al-add). For a similar observation, see Maribel Fierro, When Lawful Violence Meets Doubt, 215-19, hypothesizing that the failure to include the maxim indicates a position against the practice of add avoidance. However, as I discuss below, inclusion seems less a matter of support than circulation and requirements of adth-authenticity; the maxim was widely used in a standard form by contemporary jurists, without any of them asserting that it was a prophetic adth. It thus makes sense that the maxim would not appear in canonical or any other earlier adth collections as a prophetic adth.
15 14 13

Sunn collectors Ibn Ad (d. 365/976), Draqun (d. 385/995), and Bayhaq (d. 458/1066) record chains that attribute the adth mostly to Companions. Isml collector Q Numn (d. 363/974) lists no chain, and Imm collector Ibn Bbawayh (d. 381/991-2) attributes the saying to the Prophet without a chain. Whenever there is some hint of prophetic attributions, adth critics typically assail them for weak links in the chains of transmission. 33

contained in the books of both adth and law. Instead, traditionists of the early period affirmatively regarded these statements as non-prophetic. Where then did they come from? B. Scholarly Perspectives on the udd Maxim as a adth Joseph Schacht and Maribel Fierro astutely have doubted the prophetic provenance that later jurists attach to the udd maxim as a adth. Accordingly, they engage in critical attempts to locate its origins by time and place.16 Schacht traces its origins to second-century Kufa. According to his common link theory, the report would have been introduced in the time of the famous Medinese traditionist Ibn Shihb al-Zuhr (d. 124/742); he is the lowest common link in a chain that proliferates from him to Yazd b. Ziyd and other Kufan traditionists.17 Zuhr, Yazd, or later traditionists would have initiated and consistently spread the chain leading up to Zuhr because the earlier fictitious part (i.e., the Prophetisha UrwaZuhr) was regarded as particularly strong and reliable, thereby lending authority to the statement appended to a reliable adth chain. Moreover, one might add that at least some early transmitters of this adth should have come from Medina,
16 Joseph Schacht, Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950) 180-89 (section on Legal Maxims: Pt. 2, Ch. 6); Fierro, When Lawful Violence Meets Doubt. See Appendix (isnd map). Schacht posits that a common link in transmission chains indicates that a report emerged at the time of the common link and was later attached to more authentic chains of different versions of the same report. Finding that most common links occur in the first half of the 2nd/8th century, Schacht concluded that Islamic law could not have been older than that period. Schacht, Origins, 171-75. For an elaboration of this theory, see G.H.A. Juynboll, Some Isnd-Analytical Methods Illustrated on the Basis of Several Woman-Demeaning Sayings from adth Literature, in adth, ed. H. Motzki (Aldershot; Burlington, VT: Ashgate/Variorum, 2004), 175-216. For criticisms of this theory, see Motzki, Origins, 25-6; M. Mustafa al-Azami, On Schachts Origins of Muhammadan Jurisprudence (Riyadh: King Saud University; New York: John Wiley and Sons, 1985), 154-205; see also G.H.A. Juynboll, Muslim Tradition: Studies in Chronology, Provenance, and Authorship of Early adth (Cambridge; New York: Cambridge University Press, 1983), 214 (The common link, if there is one, is often only a useful tool from which to distill an approximate chronology and possible provenance of [a] adth.); ibid., 217 (adding that the common link phenomenon was buried under accretions and concluding that it is a rarely noticeable phenomenon therefore of limited utility). 34
17

where the Prophet and his followerssaid to have articulated the sayinglived; and that if the Medinese Zuhr indeed heard the saying from earlier authorities, he would not have been the only one, such that more chains with Medinese authorities are to be expected. The absence of non-Kufan transmitters in the chain, other than Zuhr, would support Schachts idea that the statement is of Kufan stock and was projected back to Medinese authorities before being ascribed to the Prophet. This absence is not, however, quite as absolute as appears from the chains that Schacht analyzed. When the full range of the adth collections of the period are taken into account, a slightly different picture emerges. Specifically, from the Medinese Zuhr, the chain fans out to non-Kufan traditionists Uqayl and Burd.18 Nevertheless,
18 These two traditionists are Shm. Ab Khlid Uqayl b. Khlid b. Aql (d. 144/761-2) is from Ayla (in present-day Aqaba, Jordan) and Ab l-Al Burd b. Sinn (d. 135/752) was originally from Damascus before he moved to Basra. See Ibn Sad, al-abaqt al-kubr, ed. Al Muammad Umar (Cairo: Maktabat al-Khnj, 2001), 7:519 (Uqayl); Ab l-ajjj al-Mizz, Tahdhb al-Kaml f asm al-rijl, ed. Bashshr Awwd Marf (Beirut: Muassasat al-Risla, 1992), 20:242-45, no. 4000 (Uqayl), 4:43-46, no. 655 (Burd). Additionally, there are references to a potentially non-Kufan Yazd b. (Ab) Ziyd, whose identity is confused in the sourceswhich variously cite him as Basran, Damascene, or Kufan. Further, there is a Medinese Yazd who is confused with the Damascene one. (The sources are uncertain as to whether the proper name is Yazd b. Ziyd or Yazd b. Ab Ziyd, or whether those were two different people who transmitted to and from some of the same traditionists.) In sum, there were four potential candidates of known traditionists named Yazd b. (Ab) Ziyd who lived at the time of the one found in these chains, each from one of the aforementioned regions. The Yazd in the chains for our report of the udd maxim is not the Basran or the Medinese, neither of whom transmitted traditions to prominent traditionist Wak b. al-Jarr as did the Yazd in the udd maxim chains. Instead, he may have been the unreliable Damascene who transmitted from Zuhr and to Muammad b. Raba, as in one chain for the udd maxim. On the Damascene Yazd, see Ibn Ab tim, al-Jar wal-tadl (Hyderabad: Mabaat Jamiyyat Dirat al-Marif al-Uthmniyya, 1970), 9:262-63, no. 1109 (af); Ibn Ad , al-Kmil f uaf al-rijl, ed. alLajna min al-Mukhtan bi-Ishrf al-Nshir (Beirut: Dr al-Fikr, 1984), 7:2714-15 (munkar al-adth); Ibn al-Jawz, Kitb al-uaf wal-matrkn, ed. Ab al-Fid Abd Allh al-Q (Beirut: Dr al-Kutub al-Ilmiyya, 1986), 3:209, no. 3781; Mizz, Tahdhb, 32:134-35 (munkar al-adth); Ibn ajar al-Asqaln, Tahdhb alTahdhb, ed. Muaf Abd al-Qdir A (Beirut: Dr al-Kutub al-Ilmiyya, 1994), 11:285, no. 8037. He may also have been the reliable Kufan, who transmitted from Zuhr and to Wak, as noted in most chains for the udd maxim. On the Kufan Yazd, see Ibn Ab tim, al-Jar wal-tadl, 9:262, no. 1107; Mizz, Tahdhb, 32:130-31, no. 6988; Ibn ajar, Tahdhb al-Tahdhb, 11:284, no. 8035. This puzzle about just which Yazd it was is an example of the proliferation of names on the basis of corruptions in oral and written transmission (though there were often other reasons for confusion); it was frequently impossible to tell which traditionist was meant when copying adths from written works. Accordingly, here, it is impossible to tell conclusively which of the Yazds the traditionists thought transmitted the textthe Damascene or the Kufan, the son of Ziyd or Ab Ziydas these lived at the same time and place, transmitted to some of the same traditionists, and thus were regularly confused in the sources. 35

the presence of an overwhelming majority of Kufan transmitters after the early Medinese part of the chain (as noted, the ProphetishaUrwaZuhr) suffices for Schachts point that the maxim may have originated or at least proliferated most pronouncedly in Kufa. Schacht believed this scenario to reflect a trend shared by many legal maxims, generally as sayings of Iraqi origin.19 For him, Kufan traditions of this type were normally ascribed to Ibrhm al-Nakha (d. ca. 96/717), as here, then projected back to Ibn Masd and earlier authorities all the way back to the Prophet. But his stated assumptions about early Islamic law led him to conclude that any such ascription to Ibrhm must have been categorically false, as was the ascription of any adth with legal import to any figure in the 1st century of the Hijra. For Schacht, Islamic lawand especially criminal law20was too unsophisticated to have be[en] possible in the first century; non-ritual law was non-existent; and consequently any figure or legal doctrine attributed to that period, he dismiss[ed] ... as legendary.21 Accordingly, this maxim could not be traced back to the legendary Ibrhm; instead, at most, it was attributed to him by his pupil, ammd b. Ab Sulaymn (d. 120/738), whom Schacht considers the first fully historical Iraqi jurist and the foremost representative of the

19 Schacht, Origins, 184 (describing a considerable number of legal maxims).

20

Idem, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 187 (There exists ... no general concept of penal law in Islam. The concepts of guilt and criminal responsibility are little developed, that of mitigating circumstances does not exist; any theory of attempt, of complicity, of concurrence is lacking. On the other hand, the theory of punishments, with its distinction of private vengeance, add punishments, tazr, and coercive and preventative measures, shows a considerable variety of ideas.) (emphasis in original). Idem, Origins, 235-36. 36

21

Kufian Iraqian school in the generation preceding Ab anfa.22 He concludes that the trajectory of the maxim must have been as follows: The maxim restrict add punishments as much as possible started as an anonymous saying, was then ascribed to the Companions and Successors in general, then to a number of individual Companions, and finally to the Prophet ... . The maxim cannot be older than the end of the period of the Successors. As an anonymous slogan, the maxim is introduced with the words they used to say; this is one of the formulas used of ancient opinions.23 In a recent review of Schachts theories on this maxim, Fierro agrees with his placement of the maxim in Kufa but disagrees with his conclusions about dating: I find it difficult to conciliate what Schacht says in the section on Ibrhm alNakha with what he had said earlier [in his chapter on legal maxims]. If the legal maxim restrict add punishments as much as possible belongs to the realm of ancient opinions circulated by the end of the period of the Successors, then Ibrhm al-Nakha (d. ca. 96/717) could well have transmitted it on his own (hence the fact that he used the [anonymous] formula kna yuqlu) and ammd just took it from him. Thus, I see no problem in considering that the legal maxim already circulated at the times of Ibrhm al-Nakha.24 Unlike Schacht, Fierro distinguishes between two iterations of the maximone that advocates udd avoidance as much as you can (m staatum) and anotherthe standard versionthat invokes it in the presence of doubt and ambiguities (bilshubaht).25 In this way, she concludes that the dating was different from the one that
22 Ibid., 237-40 (quoted and discussed in Fierro, When Lawful Violence Meets Doubt, 221).
23 24 25

Ibid., 184 (cited and discussed in Fierro, When Lawful Violence Meets Doubt, 220). Fierro, When Lawful Violence Meets Doubt, 221.

Her more detailed categories differ from mine, see ibid., 219-20, but this basic distinction is germane to the discussion here. I would group the adth versions into three broad categories of content. The first prescribes udd avoidance given some exculpating cause or to the extent possible, as in versions 1, 3, and 5, which have questionable attributions to Ibn Masd or to Ibrhm al-Nakha. The second category requires udd avoidance typically in the presence of shubha or shubaht, as in versions 4, 6, and 7, with questionable attributions to the three Companions Ibn Masd, Mudh b. Jabal, and Uqba b. mir (version 4) and with other attributions to Zuhr (version 6) or Umar (version 7). The third category combines the first two and/or offers a rationale for udd avoidance, as in versions 2 and 8. Version 2 is noteworthy because it becomes the most oft-cited (in later works) and most widely diffused, with eight independent chains in contrast to the single chains of all other versions. This version combines the as much as possible and ambiguity language with a rationale explaining why udd sanctions should be avoided. It alone appears at all levels of the adth collectionsthe pre-canonical, canonical, and post37

Schacht would have proposed had he made this distinction and seen to which end the jurists employed each. In other words, Fierro argues that Schacht, if he allowed the possibility of a first-century dating, would have agreed with her dating had he noticed this distinction between versions. The distinction is important, as we can observe jurists referencing the latter version rather than the former. If we were to take Schachts translation restrict add punishments as much as possible (emphasis added) as an indication of the version of the maxim that he was reviewing, then he missed the presence and thus import of the existence of two different formulations. More likely, he merely adopted a single translation of the various formulations of the adth-cum-maxim. This we can assume, because we know that he had access to sources referencing both formulations, as in Ab Ysufs Kitb al-Kharj. Accordingly, when he referred to Ibrhm al-Nakha, he seems to have had in mind either the as much as you can or the bil-shubaht version, without distinguishing between the two; and on his theory, either or both would be the oldest form(s) of the maxim as one of the anonymous ancient sayings. While such conflation may be a reasonable strategy in some contexts where a single adth has different wording, here, it obscures a material difference. Fierro has one view of the importance of disaggregating the two for dating, and my study takes another view of the significance of this distinction for early Islamic legal practices. For Fierro, the as much as you can version came first, and the doubts and ambiguities version followed later in an attempt to curtail the arbitrariness of the
canonical collections of Abd al-Razzq, Ibn Ab Shayba, Tirmidh, Draqun, and Bayhaq; it also appears in juristic works as early as Ab Ysufs Kitb al-Kharj. Most adth scholars reject the single strands connecting any version of the adth back to the Prophet, but find that the attributions to isha or later transmitters, such as Zuhr, or jurists, like Ibrhm al-Nakha, to be sound. For details, see Appendix. 38

former. In her estimation, udd avoidance was quickly linked with concern for people of high social standing, which must have been influential in the formulation of the principle idra al-udd bi-l-shubuht. With this concern at the back of the minds of the elite, she elaborates, [t]he only way for Muslims of high social status to escape the udd penalties was to create a culture of indulgence in which every possible means was to be used in order to avoid the punishment, as reflected in the [as much as you can] formula ... .26 To that end, she relates several stories from later historical reports that she takes as proof that the general and indiscriminate import of that saying ... was the oldest formula ... .27 She then describes a sea change: By the second half of the second/eighth century, that formula must have been seen as no longer acceptable: udd had to be taken seriously, especially under pressure from the pious opposition ... . A new wording was necessary, one that eliminated its indiscriminate and arbitrary character, while still allowing for possible ways of escaping the penalty, especially when a clever jurist was able to find a hole in the law.28 She postulates that this led to the anaf circulation of the standard formula (idra ludd bil-shubaht) in Kufa. As corroborating evidence, she relies on two central observations. First, the standard version is explicitly associated with the two most important pupils of Ab anfa, Zufar and Ab Ysufwho continued to benefit from the earlier and more flexible formulation.29 Second, this version comes at times with a telling addendum instructing judges to overlook the faults of those of high station. In sum, she concludes, elite anaf jurists who stood to benefit from a broad disregard of
26 Ibid., 236 (idra l-udd an al-muslimn m staatum).
27 28 29

Ibid. Ibid. Ibid., 222-26, esp. 222-23 (discussing Zufars case); see also ibid., 231-22 (discussing Ab Ysufs case). 39

udd laws are the ones responsible for circulating the maxim, and concern for [such] people of high social standing ... must have been influential in the formulation of the maxim as a prophetic adth with the standard formula (idra l-udd bil-shubaht).30 Before addressing these ideas in detail, we turn to the view of the maxim amongst anafs, and importantly, other jurists as well. The aim is to provide a framework for assessing theories of the maxims dating and function.
III. udd Maxim amongst Early Jurists

A. anafs and the Use of the Maxim in Iraq Ab anfas circle expounded and applied the maxim early on in the form that has been popularized amongst most subsequent jurists: idra l-udd bil-shubaht. But it is not clear that they did so because of a concern with social class, and it seems very clear that they were not the ones concerned with producing a prophetic attribution. The sources suggest that Ab anfa himself used the maxim in this popular form, and we know that his principal associates applied it. Thus, Shaybn adduces examples in his Kitb al-thrapplying the principle and pointing to the position of his teacher Ab anfa, who in turn drew on opinions of Ibrhm al-Nakha.31 Also, as noted above, Ab Ysuf mentions the popular versionalongside other versionsin his Kitb al-

30 Ibid., 222, 236.

31 Muammad b. asan al-Shaybn, Kitb al-thr, ed. Khadja Muammad Kmil (Karachi: Idrat alQurn wal-Ulm al-Islmiyya, 1998-9), 136 (bb dir [sic] al-udd) (citing version 2, see Appendix). Shaybn does not mention the standard version in this work, where he records traditions that he learned from Ab anfa, but tells us that his teacher adopted a variant of version 2, where Ibrhm alNakha attributes the saying to Umar. There is a problem in his citation: the content is consistent with Abd al-Razzqs record of a report from Ibrhm al-Nakha (on anonymous authority), but the chain is consistent with Ibn Ab Shaybas attribution of the report to Ibrhm al-Nakha from Umar. Nevertheless, the basic point is there that Ab anfa adopted the maxim.

40

Kharj.32 Moreover, there are colorful stories of instances in which Ab Ysuf and Zufar applied the maxim. For example, in a case involving Hrn al-Rashd, this famous Abbsid caliph attempted to protect a young family member (possibly his son) from punishment for committing a sex crime (zin). According to the story, Ab Ysuf was a poor, orphaned, no-name jurist who came to Baghdad after Ab anfas death. One of the local leaders had violated an oath, and was looking for a juristic opinion as to what to do in expiation for what was widely regarded as a weighty sin. When the leader encountered Ab Ysuf, the jurist told him that he had not technically violated his oath, and no expiation was due. Pleased, the man gave Ab Ysuf a sizeable sum of money and secured a house for him in town close to his own. One day, this same man went to Hrn and found him depressed. The caliph explained that his sadness had to do with a religio-legal matter for which he needed the aid of a jurist to render an opinion, so the man immediately suggested Ab Ysuf. When the latter came, he noticed a young man with an air of royalty who appeared to
32 Ab Ysuf records several versions: a form of the standard version (which he attributes to Companions and Successors) along with a few others, for which he provides familiar isnds. See Ab Ysuf, Kitb al-Kharj, ed. Muammad Ibrhm al-Bann (Cairo: Dr al-Il, [1981]), 303 (Arabic text: idra l-udd bil-shubaht m staatum, wal-khaa f l-afw khayr min al-khaa f l-uqba, combining the standard version with the appendage that appears in various adth versions (ma staatum) plus the rationale adduced in the last part of version 2 (al-khaa f l-afw ...)); ibid., 305 (Arabic text: idra l-udd an al-muslimn m staatum, fa-idh wajadtum lil-muslim makhrajan fa-khall sablahu fa-inna l-imm la-in yukhi f l-afw khayrun lahu min an yukhi f l-uqba, i.e., version 2, together with the familiar isnd transmitted directly to Ab Ysuf rather than through the intermediate Wak: Yazd b. Ab Ziyd ZuhrUrwaisha); ibid., 303 (Arabic text: idra l-udd an ibd Allh m staatum, i.e., version 3 together with the truncated isnd (al-AmashIbrhm [al-Nakha]), as appears in Ibn Ab Shaybas version); ibid., 304-35 (Arabic text: la-an uail al-udd f l-shubaht aabb (or khayr) min an uqmah f lshubaht, i.e., version 7, also with the isnd later identified by Ibn Ab Shayba (ManrIbrhm (alNakha)... Umar)). The saying appears in other editions with formulations close to the standard one, that is, using shubaht; but this is likely an interpolation of what later came to be so standard that the copyist easily thought it belonged in the wording. See, e.g., the edition of Amad Muammad Shkir (Cairo: al-Mabaa al-Salafiyya, 1347/[1929]), 181 (Arabic text: idra l-udd an al-muslimn [bil-shubaht] m staatum ..., with brackets in original text and a note from the editor that the shubaht phrase inside the brackets appears in a Taymriyya manuscript of this work). 41

be locked in his room. The young man gestured at Ab Ysuf in an appeal for help, but the jurist could not make out what he wanted. He proceeded to his appointment with the caliph. What is your opinion, Hrn asked, concerning an imm who witnessed [another] man committing zin; must [the perpetrator] receive the add punishment? Surmising that the caliph must have been referring to one of his family membersthe same young man whom he had passed on the wayAb Ysuf replied, No. Hrn prostrated (in joy). Ab Ysuf explained that his opinion was consistent with the Prophets instructions to avoid udd punishments in cases of doubts or ambiguities (idra l-udd bil-shubaht). Judicial knowledge is insufficient evidence to establish a crime, he said; with no direct or corroborating evidence (i.e., a confession or four eyewitnesses to the act), the matter was sufficiently doubtful to avoid the add sanction. (We are reminded of Alis decision regarding the murder in Medina told at the outset, minus the intrigues and favors of royalty.) In gratitude, the caliph bestowed upon Ab Ysuf a considerable amount of money and favor on behalf of the offending prince. According to the lore, this episode eventually led to Ab Ysufs judicial appointment and ensured his continuing elite status.33 The anecdote is obviously a stylized narration; its effect is to feature the udd maxim in popular form as prophetic.34
33 This story is repeated relatively frequently in the literary sources. See Q al-Tankh, Nishwr almuara wa-akhbr al-mudhkara, ed. Abbd al-Shlj (Beirut: Dr dir, 1971-73), 252-4 (for an English translation, see D.S. Margoliouth trans., The Table Talk of a Mesopotamian Judge (London: Royal Asiatic Society, 1922), 136-37); see also Ibn Khallikn, Wafayt al-ayn (Beirut: Dr al-Thaqfa, [1968]), 6:381-82; Ibn al-Ward, Tarkh Ibn al-Ward (Najaf: al-Mabaa al-aydariyya, 1969), 1:281 (reporting this event under the year 181 AH); see also Ab Abd Allh al-Yfi, Mirt al-jinn wa-ibrat al-yaqn f marifat awdith al-zamn (Beirut: Muassasat al-Alam lil-Mabt, 1390/1970), 1:383 (quoting Ibn Khallikn and reporting this event under the year 182 AH).
34

Scholars recently have taken note of this story in contexts discussing the udd maxim. See Fierro, When Lawful Violence Meets Doubt, 231-32; Christian Lange, Justice, Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University Press, 2008), 192. 42

The maxim also appears in an episode involving Zufar b. Hudhayl (d. 158/774), one of the main students of Ab anfa after the two Companions Ab Ysuf and Shaybn. For Zufar, the maxim became a cause for opprobrium on the part of a man named Abd al-Wid b. Ziyd. According to the story, when he encountered Zufar, Abd al-Wid rebuked him by saying that you all [i.e., Zufar and the early anafs] have circulated a saying (adth) amongst the people that is laughable. And what is that? Zufar asked. Abd al-Wid responded that you say idra l-udd bil-shubaht, but when you are faced with the most significant (or harshest) punishments, you rule that they are to be imposed despite the existence of shubaht. Zufar asked, How so? Abd al-Wid responded, The Prophet said that a Muslim is not to be put to death for the homicide of a non-Muslim (kfir), but you say that he is, in the case of dhimms. Here, Zufar is said to have retracted an early anaf ruling that a Muslim could receive the death penalty for intentionally killing a non-Muslim.35 * * *

Fierro uses such cases recounting the application of the udd maxim to develop a theory that the maxim was a principle employed (or perhaps designed) to benefit the upper-class and that this was done under the aegis of prophetic attribution. Thus, it serves as a boon for Ab Ysuf personally and professionally, and it is food for thought for Zufar concerning an outlying early anaf position. But there are good reasons to
35 Ab Bakr al-Bayhaq, al-Sunan al-kubr, ed. Muammad Abd al-Qdir A (Beirut: Dr al-Kutub alIlmiyya, 1994), 8:31, no. 15700; see also Shams al-Dn al-Dhahab, Siyar alm al-nubal, ed. usayn al-Asad Shuayb al-Arna (Beirut: Muassasat al-Risla, 1981), 8:40-41 (entry for Zufar b. Hudhayl, reporting the story as related by Abd al-Ramn al-Mahd [d. 198/813]). Fierro cites this same story as it appears in Dhahab. Fierro, When Lawful Violence Meets Doubt, 222 (citing Dhahab, Siyar, as well as Bayhaq, Sunan). For the early anaf rule that a Muslim is eligible for the death penalty for killing a non-Muslim, see Shaybn, thr, 218-19 (mentioning muhad, narn, yahd, from the first three caliphs; and mjs according to Ab anfa). 43

discount the prophetic attribution in Ab Ysufs story. It is told some two centuries after the events it relates at a time when the maxim, as we shall see, is firmly embedded in Islamic tradition as prophetic.36 Ab Ysuf does not himself refer to the maxim as a prophetic saying in his Kitb al-Kharj. There, the maxim is an anonymous saying in its standard formula and is otherwise attributed to Companions in different formulations, through various chains of transmission. As for Zufar, Fierro wonders whether Abd alWid chastised Zufar because of his associates incoherent application of the maxim or because of their (presumed) prophetic attribution. So far as I can tell, this question does not seem to arise here, as Zufar does not attribute the saying to the Prophet in the story. Abd al-Wid refers to the saying as a adth, but there is no indication that he means this in the later Sunn technical sense of the term as a prophetic statement. Instead, we must conclude that Ab anfa and his associates most likely cited and discussed the maxim in its standard form as an anonymous saying (as did Ab Ysuf in Kitb al-Kharj, his teacher Ab anfa, and his teachers teacher Ibrhm al-Nakha). There is no reliable evidence that they attributed it to the Prophet. All contemporaneous indications suggest that they did not. What is certain is that this was a legal maxim that was applied by anafs in Kufa, as Schacht and Fierro concluded. Did it spread beyond their circle?

36 This is outlined in Parts IV and V below. For citations of the maxim as a prophetic adth in other nonlegal works, see Fierro, When Lawful Violence Meets Doubt, 226. 44

B. Other Early Jurists Sources indicate that the maxim was applied elsewhere in Iraq, Syria, the ijz, and the other major centers of the Islamic world.37 In Iraq, the maxim found broad application by Sufyn al-Thawr (d. 161/778), a contemporary of Ab anfa and his associates, who operated outside of their circle in Iraq and was considered to be a founder of his own school. He held, for instance, that the add punishment for fornication or adultery (zin) is to be averted from a man who has intimate relations with his muktaba (a slavewoman who has a contract for freedom and for whom relations with her master are thus illicit).38 He also said that the same add punishment is to be avoided by reason of shubha from a man who has sexual relations with a slavewoman whom he purchased with capital supplied by his business partner.39 No add sanction would be was due in either case because both defendants would have gained partial ownership of the slavewomen and thus would have had a reasonable basis for believing that sexual relations with each were licit. There are several other

37 Though early sources for practices in Mecca and Syria are sparser than those for Medina and Iraq, there are indications that jurists followed practices of udd avoidance in cases of doubt there as well. For example, Abd al-Razzq tells us that Umar b. Abd al-Azz (r. 99-101/717-720), who lived in Medina and then in Syria, along with some others, avoided determining that there was add liability for zin in the case of a woman who married (or had intimate relations with) her slave, though this was prohibited by Umar b. al-Khab and A. She had been married before, and so she was eligible for the stoning punishment for zin. As such, Umar b. Abd al-Azz declared that he would have stoned her if it were not for her ignorance of the law; instead, he commanded her to sell the slave to someone who would remove him far from the vicinity. Abd al-Razzq, al-Muannaf f l-adth, ed. abb al-Aam (Beirut: al-Maktab al-Islm, 1392/1972), 7:210. Wak (d. 306/918) also cites instances of udd avoidance on the part of the Syrian Umayyad judge Fala b. Ubayd al-Anr, for instance. Wak, Akhbr al-qut, ed. Sad Muammad al-Lam (Beirut: lam al-Kutub, 2001), 617. Similar instances of Awzs practices in this regard appear in Ibn Qudmas Mughn and Ibn azms Muall.
38 39

Abd al-Razzq, Muannaf (1972), 8:430 (yudra anh al-add). Ibid., 8:255 (duria anh al-add bil-shubha). 45

instances in which Thawr applied the maxim, often in a way that closely echoed the language of the standard formula.40 Medinese jurists also applied the maxim. Mlik invoked it, holding that the add punishment for zin is to be avoided where a man has sex with a slavewoman without having the full ownership interest that would permit him to do so legally.41 Another instance of udd -avoidance concerned the question whether a man incurs add liabilityfor zin in a case where he denies that he consummated his marriage despite his having been alone with his wife after the wedding. If he did consummate the marriage and then was proved to have had intimate relations with another woman, the act would be adultery and the punishment stoning; if not, the act would be fornication and the punishment flogging. Ibn al-Qsim (d. 191/806), Mliks student and the most important jurist in forming early Andalusian Mlik law, told Sann, who transmitted the version of the Mudawwana in which this story appears, that Mlik did not speak to this precise issue, but that on a related matter had cited the udd maxim in its popular form (idra l-udd bil-shubaht) on anonymous authority. Applying that principle here, Ibn al-Qsim noted that, by the operation of this maxim, the add punishment is

40 In many of these cases, he applied the principle without citing the maxim or language close to it. For instance, he avoided imposing the add punishment on a man who consummated a marriage with a woman who never agreed to the marriage in the first place and where there were no witnesses or any other signs of a valid marriage, Abd al-Razzq, Muannaf (1972), 6:207. For other instances of Thawrs add-avoidance, see Muammad Rawws al-Qalahj, Mawsat fiqh Sufyn al-Thawr (Beirut: Dr al-Nafis, 1990), 241-44.
41

See Mlik b. Anas, Muwaa, narration of Yay b. Yay al-Layth, ed. Bashshr Awwd Marf (Beirut: Dr al-Gharb al-Islm, 1996), 3:393 (holding that if a man permits his slavewoman to have sex with another man, even though this is illegal, the add is to be avoided: duria anh al-add, and that if a man has sex with his son or daughters slavewoman also, the add is to be avoided: yudra anh al-add). 46

to be avoided until and unless the accused admits to consummating the marriage or until and unless witnesses can be found to testify to such an admission.42 In Egypt, we also find that Shfi applies the maxim. For example, in his Kitb al-Umm, he invokes it in a case of conflicting testimony concerning stolen goods. If a thief steals and four witnesses testify against him, two saying that the item stolen was a certain garment of one value and the other two saying that it was a different garment of some other value, does the add punishment for theft (hand amputation) apply? On the one hand, the two sets of testimony are sufficient to establish that the thief has committed a crime, but on the other hand, the conflict creates a doubt as to which item was stolen. In such cases, Shfi holds, the punishment is waived because we avoid udd punishments in cases of doubt, and this is a strong case of doubt.43 However, the thief does not get off scot-free; he is to pay the lesser of the two values in restitution to the owner.44 Also in Egypt, al-Layth b. Sad is said to have applied the maxim as well, though without citation to its popular form.45
42 Sann, al-Mudawwana al-kubr (Beirut: Dr dir, n.d.), 16:236 (yuql idra l-udd bil-shubaht); see also ibid., 16:276 (used in a similar formula (qad qla idra l-udd bil-shubaht) in considering whether grandparents could be held liable for stealing money from their grandchildren).
43

Muammad b. Idrs al-Shfi, Kitb al-Umm, ed. Amad Badr al-Dn assn (n.p.: Dr Qutayba, 1996), 7:52-3 (min qibal ann nudri al-udd bil-shubha wa-hdh aqw m yudra bih al-add). Shfi spent time first in the ijz, then Iraq and Yemen, and the end of his days in Egypt; his Umm is based on his older work written in Baghdad, al-ujja, and it contains his later, sometimes revised, opinions in the fiqh chapters. His application of the udd maxim may well go back to his earlier opinions in the ijz where he studied under Mlik, amongst othersor Iraqwhere he interacted with prominent members of ahl al-rayboth of whom employed the maxim. Ibid.

44 45

Al-Layth b. Sad (d. 175/791), who was highly regarded by Shfi, was called the Imm of Egypt during his lifetime. He received his fiqh training in Mecca and Medina (under Mlik) but subsequently charted his own path. He is said to have avoided imposing udd punishments when a perpetrator was ignorant of the illegality of the crime, e.g., a man marrying two sisters or taking on a fifth wife (see Ibn azm, Muall, 11:247), or taking money from the spoils of war to which he was not entitled (see Muwaffaq al-Dn Ibn Qudma, al-Mughn al Mukhtaar Ab al-Qsim al-Khiraq, ed. Abd Allh b. Abd alMusin al-Turk and Abd al-Fatt Muammad al-ulw (Cairo: Hajr, 1986), 8:470; Muammad b. Amad al-Qurub, al-Jmi li-akm al-Qurn (Cairo: Dr al-Shab, [1961?]), 4:260), because of the presence in each 47

In Baghdad some decades later, Amad b. anbal cited the maxim. In the form of a prophetic adth, he thoughtlike other early adth scholarsthat the saying was of dubious authenticity. He noted nonetheless that the Prophet had applied the principle to a woman suspected of zin who claimed she was raped. That is, the Prophet declined to punish her for having illicit sexual relations given possibility of a lack of voluntariness on her part.46 It is unclear whether Ibn anbal regarded this report from the perspective of a adth scholar or a jurist, and this ambivalence later reveals itself in his schools traditionist jurisprudence, whichas we will seetakes on differing degrees of opposition to the udd maxim (at least as a prophetic adth). Finally, the maxim is attested in the Alid community in Kufa as well.47 It is listed in the works of Als judgments collected there in the third century. In one case, a man gave his wife a slavewoman and then had sex with her. When the woman complained to Al, accusing her husband of illicit sexual relations, it became apparent to her that the man was eligible for the add sanction. Fearing the harsh consequences against him, she fell on her swordperjuring herself, retracting the testimony, and thereby avoiding the add punishment.48 * * *

case of a doubt as to culpability. In the first cases, ignorance of the law diminishes culpability for clearly prohibited acts, while in the last case, the fact that a man has some ownership interest in the spoils of war exculpates him from the accusation of stealing from property to which he is not entitled at all.
46 47 48

Ibn anbal, Musnad, 5:416. For discussion of the canonical Sh adth collections, see below, note 61.

See Qumm, Qay, 253-54 (fa-udri anh al-add). One source has it that Al advised his faithful companion, Mlik al-Ashtar, to follow the wisdom of the udd maxim, in a celebrated letter of investiture and advice upon sending him to be governor of Egypt. See Ibn Shuba (d. end of the 4th/10th or 5th/11th century), Tuaf al-uql, ed. Al Akbar al-Ghaffr (Tehran: Maktabat al-adq, 1376): 126-49, 128. This source is dubious, and the maxim does not appear in the canonical version of the letter recorded in al-Sharf al-Ra (d. 406/1015), Nahj al-balgha, ed. ub al-li (Beirut: Dr al-Kitb al-Lubnn, 1967), 426-45, letter no. 53. At most, this indicates that the maxim was known in the circles that the relatively unknown figure Ibn Shuba frequented in the 4th/10th or 5th/11th century. 48

The preceding discussion indicates that the maxim was widely applied in the major regions of the Muslim community where the law was elaborated. Several jurists relied on the standard version, but none of them understood it to be a prophetic adthat a time when most adth scholars doubted its prophetic attributions and jurists did not bother to cite any. This is particularly striking in the case of Shfi, whose work of legal theory, al-Risla, emphasizes appeals to textual sources (Qurn and adth, especially, as well as consensus).49 If his insistence on these bases is taken at face value to be an indispensable feature of his jurisprudence, we would expect him to attribute the maxim to the Prophet if he thought it was a adth or else to rely on it as an expression of consensus. His use of the maxim without such attribution may be taken as an indication that he did not believe it to be a prophetic adth. He instead applied it as a legal maxim grounded in other authority, perhaps a type of implicit consensus. On this account, he would have taken the maxim to express a self-evident or self-authenticating practice reflecting the consensus of common precedent. Numerous reports indicate that there was a widespread practice of udd avoidance that predated the jurists of the end of the 1st and 2nd centuries of the Hijra, during the time when we have firm textual-historical evidence of juristic use of the maxim (that is, beginning with Ibrhm al-Nakha). It is perhaps on that basis that Shfi and others avoided udd punishments in certain situations, following the
49 Shfi, Risla, ed. Muammad Nabl Ghanyim and Abd al-abr Shhn (Cairo: Markaz al-Ahrm lilTarjama wal-Nashr, Muassasat al-Ahrm, 1988). This is not to signal agreement with Schachts assumption that a jurist will use a adth if he or she knows it. Rather, it is to argue precisely the opposite, by noting that there was a material change between early forms of authority to which jurists appealed (where there was no absolute need to cite principles deemed to be Sunna in the form of a prophetic adth, particularly where they were so widely diffused so as to be considered self-evident policies attested by continuous community practice), and a later, increasing reliance on adths used to claim or bolster ones arguments against divergent views and practices. 49

earlier widespread practice.50 This would explain why, in applying the principle, Shfi simply says that we avoid udd punishments in cases of ambiguity (emphasis added), indicating that this is an axiomatic, widely circulating principle requiring no attribution. If accurate, this fits easily with the idea of a legal maxim in the sense of a formalized substantive canon with deepbut anonymousroots. In other words, this maxim is functioning, as do legal maxims in other legal spheres, as a kind of superprecedent for which specific attribution is either unnecessary or uncommon. After the traditionist triumph culminating in the 4th and 5th centuries of the Hijra, this state of affairs changed. By then, the udd maxim had become the central principle of Islamic criminal law, and it usually appeared with new prophetic attribution amongst its proponents.
IV. Splicing Maxims for a Touch of Class

The prophetic attributions begin in the 4th/10th century.51 As noted, Draqun (d. 385/995) and Bayhaq (d. 458/1066) copied the earlier adth versions, but the chains had by then acquired prophetic origins. During the same period, Isml, Sunn, and Imm Sh contemporaries recorded formulations that begin with the standard version: Q Numn (d. 363/974), Ibn Ad (d. 365/976), and Ibn Bbawayh (d. 381/9912), respectively.52 The formulation of Q Numn and Ibn Ad is of particular interest.
50 They may have done so out of a notion that the practice traced back to the Companions and even the Prophet. See Jonathan Brown, Critical Rigor vs. Juridical Pragmatism: How Legal Theorists and adth Scholars Approached the Backgrowth of Isnds in the Genre of Ilal al-adth, Islamic Law and Society 14, 1 (2008): 1-41.
51

In another realm detailed below, that of the jurists, we find a prophetic attribution in the work of anaf jurist Ja (d. 370/981), Akm al-Qurn (Cairo: al-Mabaa al-Bahiyya, [1928?]), 3:330.

See Q Numn, Daim al-Islm, ed. if b. Al Aghar Fay (Cairo: Dr al-Marif, 1960), 2:466, no. 1653 (cited in usayn b. Muammad Taq al-Nr al-abars, Mustadrak al-Wasil (Muassasat l al-Bayt liIy al-Turth, [1407/1986-7], 18:26, no. 21,911)). For Q Numns biography and life as a judge in the early Fimid empire, see Ismail K. Poonawala, al-Q al-Numn and Isml Jurisprudence, in 50

52

At first blush, it seems to combine two different ideas of udd avoidance and udd enforcement. And the combined formulation figures into Fierros theory that the maxim emerged as a tool used originally to benefit the elite.53 The Q Numn-Ibn Ad formulation goes as follows: Avoid criminal penalties in cases of doubts or ambiguities and overlook the faults of the nobles, except as concerns criminal penalties (idra l-udd bil-shubaht, wa-aql l-kirm athartihim ill f add min udd Allh). The first part is the standard udd maxim, and we will call the second part the aql (overlook) saying. It is doubtful that this maxim existed in this form in the early period. We have no contemporaneous reports of it, as the above survey of early traditionists and jurists reveals. There are questionable references to its presence in Ibn Ads works; many scholars attribute the saying to one of his otherwise unknown worksusually without a transmission chainand the maxim is not to be found in his book on adth transmitters, al-Kmil, where we might expect it.54 Signifantly, as discussed below, Q
Mediaeval Isml History and Thought, ed. Farhad Daftary (Cambridge: Cambridge University Press, 1996), 117-43.
53

See Fierro, When Lawful Violence Meets Doubt, 233 (arguing that the cases she lists where highstatus offenders used the udd maxim to escape punishment provide the background context [that] makes sense of Ibn Ads variant of the saying . Fierro also uses this variant as evidence in support of her notion that the as much as you can formulation preceded the standard version of the udd maxim (bi-l-shubaht): By the second half of the second/eighth century, that formula [as much as you can] must have been seen as no longer acceptable: udd had to be taken seriously . A new wording was necessary, one that eliminated its indiscriminate and arbitrary character, while still allowing for possible ways of escaping the penalty, especially when a clever jurist was able to find a hole in the law. Ibid., 236. I take her to mean that the standard formulation as well as the combined version adduced by Ibn Ad were the new formulations that restricted the maxim from the culture of indulgence in which every possible means was to be used in order to avoid the punishment and prevented Muslims of high social status to [continue] to escape the udd penalties on the basis of the as much as you can formulation. Ibid.

54 The attribution of this saying to Ibn Ad is problematic. Ayn is the earliest reference I have identified and the only one to give a chain of transmission (see Appendix, Version 11), though he does not provide his source. See Badr al-Dn al-Ayn (d. 755/1451), Umdat al-qr ([Cairo]: Idrat al-iba al-Munriyya, 1348/1929-30), 20:259. Several authors cite a work ascribed to Ibn Ad with a simple attribution to Ibn Abbs, e.g., Jall al-Dn al-Suy, Jmi al-adth (Beirut: Dr al-Fikr, 1998), 1:135, no. 793 (f juz lah min

51

Numn took his attribution of this version of the adth to the Prophet from an earlier source that had combined the two different sayings.55 And of equal significance is the fact that, during the same early period surveyed, both parts of this adth were in wide circulation as separate sayings. But the two were quite distinct in attribution, circulation, and application. A. Attribution and Circulation: Two Different Circles As for attribution, we know that the udd maxim in all its versions was a nonprophetic saying attributed to Companions or adduced anonymously. Recall that, as a adth, it had a Kufan pedigree and appeared in the canonical adth collections of Ibn Mjah and Tirmidh. As a maxim, it circulated widely in juristic circles (including Iraq, the ijz, and elsewhere) during the first three centuries of the Hijra. As detailed above, two principal versions of the maxim circulated alongside each other during that

adth ahl Mir wal-Jazra an Ibn Abbs), whence al-Muttaq al-Hind (d. 975/1567), Kanz al-umml (Aleppo: Maktabat al-Turth al-Islm, 1969?), 5:309, no. 12,972 (same), and Abd al-Raf al-Munw, al-Taysr: shar al-jmi al-aghr (lil-Suy), ed. Muaf Muammad al-Dhahab ([Cairo]: Dr al-adth, 2000), 1:156, no. 314 (same); Dhahab, Siyar, 8:36-37, note 2 (s.v. Zufar b. Hudhayl) (quoting without citing Suy [above]; also: editors note that akhrajah Ibn Ad f juz lah an Ibn Abbs marfan bil-laf). There is some confusion among later scholars about the proper attribution and source of this report. For instance, though Munw attributes it to Ibn Ad in his Taysr when commenting on Suys al-Jam alaghr, he mentions in his Fay that Abd al-Razzq, rather than Ibn Ad, narrates this tradition on the authority of Ibn Abbs. The latter is incorrect if the ann traditionist Abd al-Razzq is meant, as no such attribution appears in his Muannaf. See Muammad asan ayf Allh, al-Fay al-qadr ([Cairo]: Maktaba wa-Mabaat Muaf al-Bb al-alab, 1964), 2:142(1). In addition, one commentator notes that this version of the tradition is in Ibn Ads Kmil. See the editors note in Ibn Rushd al-Jadd, al-Bayn waltal, ed. Muammad ajj (Beirut: Dr al-Gharb al-Islam, 1984), 16:324, note 169. But my examination of al-Kmil revealed no such adth in that book. See Ysuf al-Biq, ed., Mujam adth uaf al-rijl min Kitb al-Kmil (Beirut: Dr al-Fikr, 1988) (s.v. the names of the individual narrators in Ayns chain); see also Fierro, When Lawful Violence Meets Doubt, 218, note 33 (noting that her search for this adth in al-Kmil was inconclusive). The absence of this version of the adth in al-Kmil is consistent with the fact that no other scholar cites that work for this report and Suys explicit reference to Ibn Ads other work (juz). Ibn Rushds editor seems to be quoting Suys reference to Ibn Ads work mentioned in alJam al-aghr (see above); the editor uses the same language as Suy except that he interpolates f lKmil in place of the source mentioned by Suy.
55

See below, note 65. 52

period, though with different versions among the two camps of traditionists and jurists. What about the aql saying? Sunn and Sh adth literature each present largely uniform views of the source of the aql saying, none of which accord easily with their records concerning the source of the udd maxim. In early Sunn adth collections, the aql saying originates with the Prophet via ishaAb Bakr b. Amr b. azm or one of his sons.56 As for Sh sources, Q Numn does not record the saying alone, but other Sh adth sources do,57 attributing it to Jafar al-diq rather than to the Prophet.58 In both contexts, the chains for the aql saying are wholly different from those of the udd maxim and from the sparse chains adduced for the combined version at issue. Circulation and citation of the two statements are quite different as well. Amongst Sunns, the udd maxim and the aql saying seem to have circulated amongst different groups of adth scholars and appear in completely different sets of canonical adth collections. Whereas the transmitters of the udd maxim indicate a Kufan origin or circulation, the chains of the aql saying indicate a circulation in the ijz (Mecca, Medina, if), usually alongside other ijz sayings calling on Muslims
56 The most common versions of the aql saying (aql dhaw l-hayat ), are recorded with four different endings in Ibn anbal, Ab Dwd, Nas, Bayhaq, Ibn ibbn, Ibn Rhawayh, and Draqun. Nas includes two other versions with the same chain. The less typical version is the one that appears in the second part of this adth (aql l-kirm athartihim ); it appears only in a few collections. The notable point here is that all versions of the aql adth trace back to the Prophet via ishaAb Bakr b. Amr b. azm or one of his close descendants (i.e., via ishaAmraMuammad b. Ab Bakr and/or his father Ab Bakr b. Amr b. azm, then spreading out from Ab Bakr or his son).
57

Daim is the most authoritative compendium of law for ayyib Ismls. It is also a source of Imm Sh adth, as Q Numn recorded traditions attributed to the Imm Jafar al-diq and as some Imm scholars counted Q Numn as one of their own. See Wilferd Madelung, The Sources of Isml Law, Journal of Near Eastern Studies 35 (1976): 29-40, at 29; see also abars, Mustadrak al-Wasil, 18:26, no. 21,911 (citing Q Numn, Daim, no. 1653).

58

For example, see al-urr al-mil, Wasil, 11:534, no. 3 (ajz [or aql] li-ahl al-marf athartihim waghfir lahum fa-in kaffa llh azza wa-jalla alayhim hkadh, wa-awmaa bi-yadih kaannah bi-h yaull shayan). 53

to overlook the faults of fellow Muslims generally.59 Whereas the adth versions of the udd maxim appear in Ibn Mjah and Tirmidh, the aql saying appears in Ab Dwd and Nas.60 Neither appears in Bukhr or Muslim. The Sh evidence likewise suggests different realms of circulation. Versions of the udd maxim appear in Ibn Bbawayhs collection, which draws on mostly Kufan adths reported on the authority of scholars in Qum.61 But neither he nor any other collector of canonical Sh adth records the aql saying. This suggests that Qumm scholars at that time did not regard it as a adth or more pointedly, as a valid principle of law.62 The two maxims appear

59 Especially the tafaw saying, which encourages people to overlook each others faults so long as offenses have not been brought before the court, in which case adjudication and/or punishment become mandatory. See Abd al-Razzq, Muannaf (1972), 10:229, no. 18,937 (Arabic text: tafaw f-m baynakum qabla an tatn fa-m balaghan min add fa-qad wajaba); see also Ab Dwd al-Sijistn, Sunan, ed. Muammad Abd al-Azz al-Khlid (Beirut: Dr al-Kutub al-Ilmiyya, 1996), 3:137, no. 4376 (for an English translation, see Sunan Abu Dawud, trans. Mohammad Mahd al-Sharf (Beirut: Dr al-Kutub al-Ilmiyya, 2008), 5:74.); Nas, al-Sunan al-kubr, ed. asan Abd al-Munim al-Shalab (Beirut: Muassasat al-Risla, 2001), 7:12, nos. 7331-32; Ab l-Qsim al-abarn, al-Mujam al-awsa, ed. Ab Madh riq b. Iwa Allh b. Muammad and Ab al-Fal Abd al-Musin b. Ibrhm al-usayn (Cairo: Dr al-aramayn, 1995), 6:210, no. 6212; al-kim al-Naysbr, al-Mustadrak al l-aayn (Cairo: Dr al-aramayn lil-iba wal-Nashr wal-Tawz, 1997), 4:537, no. 8236; Bayhaq, Sunan, 8:575, no. 17,611.
60

For the two citations in the Sunn canonical collections, see Ab Dwd, 3:137, no. 4375 (English translation in Sunan Abu Dawud, 5:74); Nas, Sunan, 6:468-9, nos. 7253-58. For other contemporaneous sources and references through the 5th/11th century, see Isq b. Rhawayh (d. 238/853), Musnad, ed. Abd al-Ghafr b. Abd al-aqq al-Balsh (Medina: Maktabat al-mn, 1412/1990-1), 2:567; Ibn anbal (d. 241/855), Musnad, 6:181; Ab Yal (d. 307/918), Musnad, ed. usayn Salm Asad (Damascus: Dr al-Mamn lil-Turth, 1984-94), 8:363-4, no. 4953; Ibn ibbn (d. 354/965), a, ed. Shuayb al-Arna and usayn Asad, arranged by Al al-Dn b. Balabn al-Fris (Beirut: Muassasat al-Risla, 1407/1987), 1:296; abarn (d. 360/970), al-Mujam al-awsa, 3:277, no. 3139; 6:54, no. 5774, 7:302, no. 7562; Draqun (d. 385/995), Sunan (Beirut: Muassasat al-Risla, 2004), 3:207; Bayhaq (d. 458/1066), Sunan, 8:579-80, nos. 17,627-79. For later sources, see Badr al-Dn al-Ayn (d. 755/1451), Umdat al-qr, 14:256; al-Muttaq alHind (d. 975/1567), Kanz al-umml, 5:121-24.

Ibn Bbawayh, Kitb man l yauruhu l-faqh, ed. Al Akbar al-Ghaffr (Qum: Jamat al-Mudarrisn f lawza al-Ilmiyya, 1994), 4:53, no. 90. See also abars, Mustadrak al-Wasil, 18:26, no. 21,912 (listing the udd maxim as it has been popularized, attributed to Al without an isnd (from Ibn Bbawayhs Muqni). For inclusion of the saying in later collections, see Ibn Ab Jumhr al-As (d. ca. late 9th/15th century), Awl al-lal, ed. Mujtab al-Arq (Qum: Mabaat Sayyid al-Shuhad, 1983-1985), 1:236; usayn alabab al-Burjird, Jmi adth al-Sha (Qum: Mabaat al-Mihr, 1992), 23:328 (citing Ibn Bbawayh, Faqh).
62

61

The aql saying appears elsewhere in the Sh adth corpus. For example, al-urr al-mil, Wasil alSha, 11:534, records a version of the saying (citing Fur [= Kulayn, Kf]). 54

together during that time in the Sh sources, as noted, only in Q Numns Daim, which draws on a collection of reports from not only Kufa, but also the ijz.63 The appearance of the aql maxim in the ijz does nothing to support an idea of early circulation of the double maxim. The Daim is an abridged law manual rather than a adth work designed to preserve legal rules in the form of authentic prophetic adths with their chains. For this reason, Q Numn often splices together adths of different provenance or omits chains altogether to support a particular legal proposition.64 Here, the fact that he draws on early adth collections from Iraq (where the udd maxim was circulating as a adth) and the ijz (where the aql maxim was found), plus the complete absence of the adth in joint form in the first three centuries of the Islamic period, together indicate that it is quite possible that he or someone from whom he copied his adths spliced these separate sayings together too.65 In fact, a
63 Q Numn extracted the reports in Daim, from which he omitted transmission chains, mostly from his massive work of law-related adth, Kitb al-, which gatheredamong other sayingsadth attributed to the Prophets family together with their transmission chains. See Q Numn, Kitb alIqtir, ed. rif Tmir (Beirut: Dr al-Aw, 1996), 9-10 (describing his ); cf. idem, , ed. Muammad Kim Ramat (Beirut: Muassasat al-Alam lil Mabt, 2007) (the surviving fragments of adths on ritual law). See also Poonawala, al-Q al-Numn, 121, 128 (noting that he added more Zayd and Mlik components to the Daim as well); Madelung, Sources of Isml Law, 29 (noting the Imm and Zayd components). Kitb al- is mostly lost, but from the surviving portion, Madelung reconstructed the sources from which Q Numn drew, at least in the extant section on ritual law, and locates them in the late second and early third centuries in sources circulating outside of Qum. Madelung, Sources of Isml Law, 30. He concludes that the work was a compromise between Imm and Zayd lawmaterially based on authoritative sources of both but, against the Zayd tendency, emphasizing the authority of the Imms, especially that of Jafar al-diq, over other Alids. Ibid., 32.
64

Madelung, Sources of Isml Law, 29 (He usually quotes only a single tradition on any question in support of actual doctrine, or simply formulates it himself .). The question remains whether Q Numns citation of the udd maxim was derived from Imm, Zayd, or Sunn sourcesor some combination thereof. In addition to the compound version in the Daim, a simple version of the udd maxim appears in Q Numns al-Iqtir, 108, where he simply reports at the end of the chapter on udd that punishments are to be avoided in cases of doubt or ambiguity (wa-yudra al-add bil-shubha ...). The standard, if not compound, version thus probably appeared in al- and his subsequent abridgments of that work (from which all but the ritual law section is lost), though there is no udd maxim in his short didactic poem, al-Muntakhab. Without transmission chains in any of his surviving works, we are initially uncertain whether he gets the maxim from Sunn or other Sh sources. As for Sunn sourcesspecifically the Mlik and anaf schools in which Q Numn is believed to have started outwe know that they regularly invoked the udd 55

65

 maxim during this time in Ifrqiya and elsewhere. On Q Numns religious and legal affiliations, and conversion from Sunnism to Isml Shism, see Ismail K. Poonawala, A Reconsideration of al-Q alNumns Madhhab, Bulletin of Oriental and African Studies 37, 3 (1974): 572-9. While this suggests, at most, that Q Numn may have been familiar with the udd maxim through those avenues, a look at the Sh sources shows where he got his extended version of it. The Imms of course have it, as Q Numns contemporary, Ibn Bbawayh (d. 381/991-2), includes it in his adth compilation. (The other compilers of the Imm adth canon, Kulayn (d. 329/941) and s (d. 460/1067), do not.) In principle, Q Numn and Ibn Bbawayh could have gotten the udd maxim from a common source available to both of them at the time the former wrote al- (i.e., between 297/909 and 322/934, during the first Fimid caliph al-Mahds reign) and/or Daim (around 349/960). On the dating of these texts, see Poonawala, al-Q al-Numn, 121, 126. But this was likely not the case, because the sources informing them as well as the versions that they cited differed considerably. Instead, there is a more direct link between Q Numns version of the maxim and a version known in Zayd circles. The maxim was cited by Zaydisms eponymous school founder, Zayd b. Al (d. 122/740), according to his grandson. Though it does not appear in the Musnad collecting adths attributed to Zayd, the maxim is in a work collecting his teachings. See Zayd b. Al (d. 122/740), Musnad (also called al-Majm al-fiqh ), ed. Abd al-Azz b. Isq al-Baghdd (an, Yemen: Maktabat al-Irshd, 1990), 297-304 (kitb al-udd); Amad b. s b. Zayd (d. 248/869), Aml (also called Kitb al-Ulm), collected and commented upon by Muammad b. Manr b. Yazd al-Murd al-Kf ([Yemen]: Ysuf b. al-Sayyid Muammad al-Muayyad al-usn?, 1401/1981), 211. See also Al b. Isml al-ann, Kitb Rab al-ad (Beirut 1990), 3:1390-1405 (preserving Amad b. ss Aml, with commentary). From the Aml, we see where Q Numn copied his long version of the maxim, inasmuch as we know that he copied from written Sh sources for his works on law; in that work, it was already a double-maxim, spliced together and attributed to the Prophet: qla Rasl Allh [s.a.w.] idra l-udd bil-shubaht wa-aql l-kirm athartihim ill min add. From the chain (Muammadusayn b. NarKhliduayn [b. Mukhriq]Jafar [al-diq]his father [Muammad al-Bqir]), we know that the adth was copied from a book. See Hossein Modarressi, Tradition and Survival: A Bibliographical Survey of Early Shite Literature (Oxford: Oneworld, 2003), 275-76 (noting that Ab Junda al-Sall [uayn in the above chain], a late 2nd/8th century Kufan transmitter of adth from Jafar al-diq [as appears in the above chain] and Ms al-Kim with strong Sh leanings, authored a work called Kitb Jmi al-ilm, and that this work appears to have been quoted extensively in Amad b. ss Aml, always through the same chain of transmission; that chain of transmitters [usayn b. NarKhliduayn (b. Mukhriq)], i.e., the same one noted in our copy of Amad b. ss Aml referred to adths taken from this work). It seems to have been not uncommon for adths of similar topics like these to have appeared side by side in early notebooks and for later copyists to divide the runtogther adths sometimes incorrectly, as here, and attribute them separately to the Prophet and as if through an independent chain of transmission, also as here. In other words, Q Numn did not do the splicing; he copied from an earlier Zayd work where the adths were already conjoinedperhaps inadvertentlyand attributed to the Prophet. Furthermore, we know that the simple version of the udd maxim was circulating in the Zayd community at a point contemporary to Q Numn, as the Imm al-Hd il l-aqq (d. 298/911)although rejected by later Zaydsappealed to it during his lifetime, though without citing it as a adth and not in compound form. See Muammad b. Sulaymn alKf (d. after 399/921), Muntakhab (an: Dr al-ikma al-Yamniyya, 1993), 413, 416. As a general matter, the maxim was not compound at that time and it did not appear as a Prophetic adth in most Zayd works until the modern period. Compare Ibn al-Murta (d. 840/1437), Kitb al-Azhr and al-Bar al-zakhkhr in addition to al-Niq bil-aqqs Kitb al-Tarr (no citations to the maxim in any of these works), with Muammad b. Al al-Shawkns Nayl al-awr, eds. Muammad allq and Izz al-Dn Khab (Beirut: Dr Iy al-Turth al-Arab, 1999), 7:109, and ann, Kitb Rab al-ad, 3:1390, 1393, 1405 (citations to the maxim, though not as a adth). On modern Zayds, and particularly Shawkns appropriation of Sunn adths (as he does here with the udd maxim), see Bernard Haykel, Revival and Reform in Islam: The Legacy of Muammad al-Shawkn (Cambridge; New York: Cambridge University Press, 2003). (Thanks are due to Najam Haider for directing me to several Zayd sources.) 56

closer examination of early Sh sources demonstrates that this is indeed most probably what happened. The same may have occurred in the Sunn context, where there is a general lack of overlap between the udd maxim and the aql saying. As noted above, jurists of the early period regularly cited and applied the udd maxim.66 But they rarely, if ever, cited or applied the aql maxim to validate the practice of avoiding criminal sanctions when it came to the elite.67 This saying is missing in the works of Ibn Ab Shayba, Abd al-Razzq, Shfi, Ab Ysuf, Mlik, and most others who wrote or recorded juristic opinions during that period. One of the few traditionist-jurists of the period to mention the aql saying, Ibn Rhawayh (d. 238/853), records it but not the udd maxim.68 Exceptionally, Amad b. anbal (another traditionist-jurist who postdates the other major Sunn school-founding jurists by some decades) records both maxims, having grappled with but overcome the incompatibility problems between them. He rejects the prophetic attribution of the udd-avoidance adth and is ambivalent about

66 Jurists like Shfi, Ab Ysuf and Mlik, in addition to traditionist compilers of law-related adth like Abd al-Razzq and Ibn Ab Shayba, record and show applications of the udd-avoidance adth but not the aql saying. See above section on the early jurists. Ab Bakr b. Muammad b. Amr b. azm, a Medinese judge and adth scholar under Umar II, is said to have promulgated the adth in Medina, but he and other jurists applied it in forms that supported enforcing rather than avoiding udd laws.
68 67

Ibn Rhawayh, Musnad, 2:567 (aql dhaw l-hayat zalltihim, without the udd exception). On Ibn Rhawayhs jurisprudence, see Susan Spectorsky, adth in the Reponses of Isq b. Rhwayh, Islamic Law and Society 8, 3 (2001), 407-31 (noting that, in his responses to specific questions (masil), Ibn Rhawayh relied more on scholarly opinion and Companion sayings and less on prophetic adths than a Schachtian view of traditionists and of Shfis influence initially would lead one to surmise); cf. eadem, trans., Chapters on Marriage and Divorce: Responses of Ibn anbal and Ibn Rhwayh (Austin: University of Texas Press, 1993), esp. 1-59 (introduction with a detailed biography of Ibn Rhawayh); Abd al-Ghafr b. Abd al-aqq al-Balsh, al-Imm Isq b. Rhawayh wa-kitbuh al-Musnad (Medina: Maktabat al-mn, 1990) (expanded biography of Ibn Rhawayh). 57

whether udd punishments ever could or should be avoided.69 But he supports a particular version of the aql saying that is at odds with the lenient one cited by Ibn Rhawayh. As with the udd-avoidance maxim, there are many versions of the aql saying.70 The relevant difference among them is the occasional inclusion or exclusion of a udd exception, which stipulates that any lenient stance toward the minor faults or misdemeanors of high status members of society is inapt when it comes to udd crimes. For such serious crimes and moral offenses, the udd exception emphasizes that those of high status are subject to punishment like anyone else. Worth noting is that, while Ibn Rhawayh does not mention the udd exception, Ibn anbal includes it, as do Ibn Ad and Q Numn and most others who quote the udd maxim in addition to the aql saying.71 As such, these versions with the udd exception tend toward udd enforcement rather than udd avoidance. While both the udd maxim

69 As we saw above, Ibn anbal acknowledged the report that the Prophet avoided a add punishment in at least one instance, but he rejected the notion that his act had a more general application, as represented in one of the adth formulations of the maxim of which Ibn anbal was aware. As such, he seemed to have restricted the scope of the practice, or at least some of his later followers understood him to have regarded add avoidance in that case as a one-time exception rather than a prospective rule or general principle of udd laws. There are three other differences in terminology, as follows: (1) the term used for overlook is variously tajwaz, aql, ajz, or ihtabal; (2) the term used to refer to those of high status is alternatively al-kirm, dhaw l-hayat or haya, dh l-mura/dhaw l-murt, dhaw l-sakh, and even dhaw l-buyt (as in Muammad Amn b. Fal Allh al-Muibb, Khulat al-athar f ayn al-qarn al-hd ashar (Beirut: Maktabat Khayy, [1966]), 4:422though this author or the teacher who related it to him apparently copied or paraphrased the term incorrectly); (3) the terms used for faults or misdemeanors include athartihim, zalltihim, dhilla. For a list of several versions, see al-Muttaq alHind, Kanz al-umml, nos. 12,975-84, 12,987-88. The second set of terms (kirm, dhaw l-hayat, etc., loosely translating as those of high station) is perhaps most interesting, as it raises questions about just which class of people the maxim is designed to encompass. For an excellent discussion of class distinctions in Islamic history (through the 8th/14th century), see generally Louise Marlow, Hierarchy and Egalitarianism in Islamic Thought (Cambridge; NY: Cambridge University Press, 1997).
71 70

The version with the udd exception appears more widespread. Both versions, with and without the udd exception, appear in Nas and Ibn Rhawayh. Ab Dwd, Ibn anbal, Bayhaq, Draqun, abarn, and Ibn Ad only have the version with the udd exception. See above, note 60. 58

and the aql saying were known by his time,72 Ibn anbals treatment suggests that the lack of overlap between them amongst the adth collections and juristic works was not fortuitous. As an opponent of gratuitous udd avoidance, he found the udd maxim spurious and the aql saying wholly unacceptable without a udd exception. Though other scholars disagreed with him about the udd maxim, most came to signal agreement with his sentiment against the aql saying. Accordingly, that saying virtually disappears from subsequent legal literature,73 while the udd maxim figures prominently. B. Legal-Theoretical Rejection of Class-Based Distinctions With this survey, we are now in a better position to revisit theories about the provenance and social context of the udd maxim. In the form of a adth, it was certainly of Kufan stock, though the standard form circulated in centers outside of Ab anfas circle, such as Baghdad, Egypt, and Medina. Questions of dating linked to the socio-legal import of the maxims are more complicated. Enter the notion of a touch of class. Recall Fierros suggestion that the two versions of the udd maxim reflected a historical trend of favoring the social elite in criminal proceedings. To support her point, she provides many examples of how the maxim was indeed used and abused to favor the rich and powerful. The historical point
72 We have already seen that the aql saying was scattered through the adth literature. It also appears regularly in compilations of sayings and proverbs of the time, notably, without the udd exception. See, e.g., Ab Ubayd al-Qsim b. Sallm (d. 224/838), Kitb al-Amthl, ed. Abd al-Majd Qamish (Mecca: Jmiat al-Malik Abd al-Azz, 1980), 1:52, no. 68. See also Marlows discussion and the citations therein, indicating circulation of this same saying in the pre-Islamic period. Marlow, Hierarchy and Egalitarianism, 27-28, note 78. An exception appears, perhaps predictably, in later anbal literature, when Ibn Qayyim al-Jawziyya cites the aql saying with its udd exception, as had Ibn anbal. See the collection of his fiqh opinions: Jmi al-fiqh, ed. Yusr al-Sayyid Muammad (al-Manra, Egypt: Dr al-Waf lil-iba wal-Nashr walTawz, 1428/2007), 6:414 (citing and commenting on a citation to the saying as a adth by the 5th/11th century anbal luminary, Ibn qil: aql dhaw l-hayat athartihim ill l-udd). 59
73

outlining this social context is not to be denied. Yet it is questionable whether this trend can support her associated argument about dating. She argues that, of the two forms she has highlighted, the vague phrase as much as you can preceded the more specific phrase doubts and ambiguities (shubaht). The latter replaced the former, she argues, in an attempt to curtail and obscure the maxims arbitrary elite-favoring aspects with objective standards that would avoid the censure of the pious opposition.74 The distinction made by Fierro is an important one, if not necessarily to support her hypothesis. In noting the differences between the two forms of the maxim, and in calling attention to the legalistic tenor of the shubaht version, her intervention may explain why the standard version becomes central in the later juristic literature. Indeed, both adth scholars and, as we will see, jurists graft a prophetic attribution onto the standard version in the later period, signaling a preference for the more legalistic phrase. But this is not to say that shubha was a well-defined technical term during this period (the sources suggest that it was not) or that the standard juristic version itself came later (the sources suggest that it did not).

74 Fierro is suggesting that shubaht is more of a technical term and thus more limited than m staatum. She posits that the latter preceded the former, which emerged as a response to the pious opposition, such as Ibn anbal, Ibn Mjah, and Tirmidh (and later Ibn azm), who were concerned that the law be applied in an egalitarian way. See Fierro, When Lawful Violence Meets Doubt, 227, 236 (noting traditions forbidding Muslims from interceding on behalf of ones [high-status] peers). This view of the technical nature of the term shubaht bears out in the later sources, and its more exacting potential may indeed explain why jurists picked up and standardized the shubaht version over the other as, gradually, they elaborated the concept and contours of shubha. See below, notes 77, 121. At the same time, arguably (at least for the likes of Ibn azm), the shubaht version provides a framework no more or less arbitrary than any other version of the maxim during the period in question (the first two to three centuries). More importantly, as I hope to have demonstrated here, both versions are contemporaneous to one another, but circulate in different scholarly circles; and, as I argue elsewhere, the elaboration of shubha comes later: jurists who invoke it do not dress it with any marked precision until the fourth and fifth centuries. 60

The sources indicate that the differences in the form of the maxim in the early period were a matter not of sequence, but of genre. Our examination of the first three centuries of adth and legal literature revealed that the adth versions and the standard version of the udd maxim circulated in two completely different arenas, simultaneously. adth scholars concerned with one set of criteria for recording traditions included in their collections a set of reports different from the maxim used by jurists interested in using another set of criteria for expounding law. Thus, adth scholars cited the various versions of the maxim but never mentioned the standard version, which did not meet their criteria for adth reliability; meanwhile legal scholars consistently cited the standard version when articulating and applying the law. This practice clarifies an important feature of the early legal system. Both camps knew of both versions. The jurists, however, did not regard their formulation as prophetic in origin; still, they cited and applied the udd maxim as a substantive principle of criminal law that drew on earlier precedent. In other words, though the wording was not authoritative, the precedentas expressed in the maximswas. In this way, the udd maxim reflected a settled legal principle even as early as the late 1st/7th or 2nd/8th century, when Ibrhm al-Nakha, Shfi, Mlik, Ab Ysuf, and others cited it as axiomatic and repeated it in a standard form. Having established that genre rather than sequence better describes the differences between basic versions of the udd maxim, what of the other versions that combine it with the aql saying? The existence of this version in Ibn Ads work, Fierro suggests, provides corroborating support for the historical trend of favoring the elite in criminal laws. Here is where timing does come into play. While the aql saying was as

61

old as the udd maxim, the combined version attributed to Ibn Ad and Q Numn was not. It came later, through the splicing together of these two different sayings circulating in two different regions. Additionally, even if the two sayings were known in the same region at some point at least in the mid-3rd/9th century, as indicated by Ibn anbals reference to both, was the prescriptive value of the aql saying intended to avert udd punishments from those of high social status? Perhaps so without the udd exception, but emphatically not with it. We have seen that Ibn anbals version of the aql saying co-opts a known saying that reflected societal norms of privileging the elite, but makes clear that their privilege does not exempt them from udd liability. It may be that he and his cohorts emphasized the udd exception precisely to curb elite privilege in applications of udd laws. In sum, whereas the arbitrary and objective versions of the udd maxim circulated side-by-side in the early period (through the 3rd/9th century), the widespread aql saying was disregarded amongst jurists in the udd context at that time, and it certainly was not appended to the udd maxim as a single saying in the adth context. The aql saying was attached to the udd maxim after the principle of mandatory udd enforcement across-the-board had won out; the addition carried a udd exception designed to underscore, not subvert, the principle that the elite were not exempt from criminal liability. It is doubtful then that elite anaf jurists whose social peers stood to benefit from relaxed udd laws were responsible for circulating the standard (or combined) version of the udd maxim, at least not primarily in order to favor the upper classes. The stories about Zufar and Ab Ysuf are unavailing. Remember that in his rebuke of

62

Zufar, Abd al-Wid does not claim that Zufar attributed the maxim to the Prophet. The story about Ab Ysuf, which does adduce a prophetic attribution, comes from a 4th century sourceby which time the maxim had come to be regarded as a prophetic adth. Moreover, the several examples from early legal sources applying the maxim to the underprivileged and non-scholarly classes show that this principle was not one meant just for the elite.75 All this notwithstanding, it is doubtless trueat least in the literary memory of the Muslim historiansthat some jurists used the maxim to benefit the elite, as the many examples Fierro adduces show. She well describes the social context that no doubt rankled jurists like Ibn anbal and Ibn azm, who wanted more principled applications of the law based on authentic traditions, and opposed the maxim on grounds of authenticity and coherence. But such preferential treatments likely incensed udd maxim proponentsamongst the anafs, Shfis, Mliks, and Sha who accepted the authority of the maxim regardless of its status as a prophetic adth and also displayed sensitivities to abuse of the maxim. They labored to curb social and political abuses too by defining the proper contours and scope of the maxim sometimes with the effect of critiquing the overuse of the maxim, but more often objecting to its underuse. It is important not to conflate the practice with the theory of the maxim in considering questions of provenance and juristic conceptions of the law. In practice, as Fierro shows, criminal law application was often at odds with theory. The theory was one of consistent udd avoidance following authoritative practices
75 E.g., the cases cited above, notes 37-40 (indicating some instances where the maxim was used to favor the uneducated, non-elite new converts who lacked high social status). To be sure, it is not clear that Fierro is suggesting that the maxims were intended to benefit the elite exclusively; rather, she emphasizes that the maxim likely emerged from and was easily abused by the elite in practice. 63

from the earliest period, as enshrined in the udd maxim. In society, hierarchy took hold in criminal and other areas of law early on, but where jurists accommodated it generally, they resisted it in criminal law, and this led to exaggerated attempts to avoid criminal sanctions in the laws on the books through a robust jurisprudence of doubt. Attempts to flatten class distinctions in prosecutions thus later appeared in the form of the modified aql saying appended to the original udd maxim. As shown below, subsequently, jurists insisted on the equal-treatment theory of udd avoidance and championed the udd maxim as the central substantive canon of criminal law for all defendants regardless of status or political pull.
V. The udd Maxim amongst Later Jurists

A. Juristic Proponents The udd maxim appears in the earliest Islamic legal texts, as jurists cite and apply it in considerations of criminal violations. From the 4th century on, anaf, Shfi, Mlik, and Imm Sh jurists developed the doctrine and continued to apply the maxim widely, as both a precedential adth-text and a central maxim of Islamic criminal law.76 By the time of the rise of the collections of legal maxims in the 7th/13th
76 The earliest juristic attribution of the maxim to the Prophet that I have been able to find from a source verifiably ascribed to its writer is that of the anaf jurist Ja (d. 370/981), Akm al-Qurn, 3:330; around the same time, the Qayrawn biographer Khushan records an incident where the Cordoban Mlik jurist Abd al-Mlik b. abb (d. 238/853) attributed the maxim to the Prophet as well. See Muammad b. al-rith al-Khushan (d. 361/971 or 371/981), Akhbr al-fuqah wal-muaddithn, ed. Slim Muaf al-Badr (Beirut: Dr al-Kutub al-Ilmiyya, 1999), 190. The maxim appears elsewhere in sources that suggest even earlier juristic attributions to the Prophet, but the possibility of interpolation cannot be ruled out, and seems likely, as contemporaneous sources indicate that no other 2nd/8th or 3rd/9thcentury figure deemed the maxim propheticeven though most later sources suggest that they did. For example, there is the citation to Ibn abbboth a jurist and a traditionistwho reportedly used the maxim as a prophetic saying to save his brother Hrn from an accusation of blasphemy. See Khushan, Akhbr, 186-91. Another prominent Mlik jurist of Cordoba, Muammad b. Amad b. Abd al-Azz alUtb (d. 255/869), reported a case in which a man suffering from extreme hunger sold his wife to another man for funds; Mliks student Abd al-Ramn b. al-Qsim reportedly invoked the maxim as a adth to avoid the punishment. See Ibn Rushd al-Jadd (d. 520/1122), al-Bayn wal-tal, ed. Muammad ajj (Beirut: Dr al-Gharb al-Islam, 1984), 16:324 (quoting the Utbiyya: qad ja l-adth idra l-udd bil64

through 10th/16th centuries, juristic writings well reflect the entrenchment of that maxim. A brief survey of these schools positions in works of fiqh and legal maxims demonstrates the extent to which the udd maxim had become central to criminal law in both citation and application.77 In the case of a man forced to rape a woman, the leading anaf of his time in Baghdad, Amad b. Muammad al-Qudr (d. 428/1037), defends the unique anaf position that judges need not avoid imposing the add punishment for zin on the perpetrator because of their view that his act could not have been involuntary, as fearthey sayprevents desire and arousal. Though anafs do not believe there to be ambiguity in this case, Qudr notes that he would avoid the punishment if there were

shubaht). (I owe these references to Maribel Fierro.) Khushans prophetic attributions here should be read with caution, as they appear in a source from a period when the maxim has become entrenched as a prophetic adth (4th/10th century); it is not clear whether Utbs use of adth is to be taken in the developed technical sense of a prophetic statement; and we have indications that at least in one case, the earlier jurists Utb cited in this work either did not know the maxim as prophetic or if they did, they did not append a prophetic attribution to it. That is, Sann (d. 240/854) relied on Ibn al-Qsim in compiling the Mudawwana; he obtained a notebook recording Mliks sayings and legal opinions from his student Asad b. al-Furt (d. 213/828) and verified those answers with Ibn al-Qsim directly. Utb, a contemporary of Sann, similarly relied on Ibn al-Qsim through copying the latter jurists notebooks (juz, sam) amongst those of other students of Mlik in his compilation of Mlik opinions, al-Utbiyya. See Umar b. Abd al-Karm al-Jd, Mabith f l-madhhab al-Mlik bi l-Maghrib (Rabat: al-Hill al-Arabiyya lil-iba wal-Nashr, 1993), 70-72. We would expect that if Ibn al-Qsim in fact quoted the maxim as a prophetic adth in one place, he would have done so when relating (or verifying) Mliks opinions to Sann and/or in his notebook from which Utb copied. But this seems not to have been the case. As recorded in the Mudawwana, Ibn al-Qsim recounted the maxim to Sann twice, but on specifically anonymous authority both times (yuql and qad qla). See above, note 42. On the flip side, a minority of jurists beyond the 4th/10th century seemsalong with Ibn azmto have continued the earlier trend of not regarding the maxim as prophetic. In his work on jurisprudence, a anaf jurist of the 5th/11th century, for example, adduces the maxim without referring to it as a adth. See Bazdaw (d. 482/1089), Ul al-Bazdaw (Karachi: Maktabat Jvd Bars, n.d.), 117, 122, 181. For juristic and traditionist criticisms of these prophetic attributions in the later literature, see below, Section V.B.
77

As a adth and a legal maxim, jurists constantly employed the maxim to resolve the hard cases those that were not rendered clear-cut by existing texts, including early precedents. As they did so, they developed their own conceptions of what constituted the types of ambiguities that would evoke the maxims application, which were then culled out and applied in works of fiqh, fatws, andin short formworks of legal maxims. 65

any ambiguity by operation of the udd maxim announced by the Prophet.78 He and other anafs uniformly apply the maxim in several cases of ambiguity when they do find it.79 By the time of Ibn Nujaym (d. 970/1563), who authored the central work on anaf legal maxims, the matter had been settled amongst the jurists. He announces the udd maxim as an authentic prophetic adth as agreed-upon and accepted by the entire Muslim community, saying that jurists of all regions have come to a consensus that [the maxim applies].80 Similarly, in the Shfi context, Ab mid al-Ghazl (d. 505/1111) adduces the legal maxim as a prophetic adth when he applies it to require avoiding the add punishment for zin in a situation where in two people had intimate relations in the context of a marriage of disputed legal validity. Examples of these doubtful marriages include temporary marriage (permitted in the Sunn Meccan school and by the Sha), marriage without a guardian (permitted by anafs), and marriage without witnesses (permitted by Mliks). The basis for avoiding the add in such cases, Ghazl explains,
78 Ab l-usayn al-Qudr, Tajrd, ed. Muammad Amad al-Sirj and Al Juma Muammad (Cairo; Alexandria: Dr al-Salm, 2004), 11:5897 (attributing the standard formula to the Prophet: (idra l-udd bil-shubaht); see also Shams al-Aimma al-Sarakhs (d. 483/1090), Ul, ed. Ab l-Waf al-Afghn (Beirut: Dr al-Marifa, 1973), 1:147 (attributing the maxim to the Prophet), 167, 290, 2:285. E.g., Sarakhs, Mabs, ed. Ab Abd Allh Muammad asan Isml al-Shfi (Beirut: Dr al-Kutub alIlmiyya 2001), 9:61-66; Ab Bakr al-Ksn, Badi al-ani, ed. Amad Mukhtr Uthmn ([Cairo]: Zakariyy Al Ysuf, 1968), 9:4150-58; Burhn al-Dn al-Marghnn, Hidya, in Akmal al-Dn Muammad b. Muammad al-Bbart, al-Inya f shar al-Hidya (Beirut: Dr al-Kutub al-Ilmiyya, 2007), 4:148-52; Abd Allh b. Amad al-Nasaf, Kanz al-daqiq, ed. Ab l-usayn Abd al-Majd al-Murdzah al-Khsh (Zhidn, Iran: Muassasat Usma, 2003), 1:563-64; Fakhr al-Dn al-Zayla, Tabyn al-aqiq, ed. Amad Izz Inya (Beirut: Dr al-Kutub al-Ilmiyya, 2000), 3:566-68; Ibn al-Humm, Fat al-qadr (Beirut: Dr dir, [1972?]), 5:249-52; Ibn Nujaym, al-Bar al-riq shar Kanz al-daqiq ([Cairo]: n.p., 1893?), 5:5-15.
80 79

Ibn Nujaym, Ashbh, 142 (citing the maximhere: al-udd tudra bil-shubahtas a adth in collections of Ibn Ad, Ibn Mjah, Tirmidh, and others). But some scholars notice that the adth was problematic and likely inauthentic. For example, the Sunn adth scholar Abd Allh b. Ysuf Zayla, says that the adth in its popular form (idra l-udd bil-shubaht) is inauthentic or anomalous (gharb), with many problematic links in the chains in the adth collections. Jamal al-Dn al-Zayla, Nab al-rya: takhrj adth al-Hidya, ed. Amad Shams al-Dn (Beirut: Dr al-Kutub al-Ilmiyya, 1996), 3:333. For a similar view in the Sh context, see Jawd al-Tabrz, ir al-najt (Qum: Dr al-adqa al-Shahda, 1422/[20012]), 1:551. 66

is the [prophetic] adth: avoid criminal punishments in cases of doubt; and the juristic dispute suffices to create a add-averting doubt.81 Other Shfis uniformly apply the maxim in like cases involving other types of doubt or ambiguity.82 By the time of Suy (d. 911/1505), who authored a core work on Shfi legal maxims, and even before,83 the matter had been settled as much for Shfis as it had for anafs. The Prophet, Suy explains, had commanded udd avoidance in instances of doubt or ambiguity.84

81 Ab mid al-Ghazl, al-Was f l-madhhab, ed. Amad Mamd Ibrhm and Muammad Muammad Tmir ([Cairo?]: Dr al-Salm, 1997), 6:443-44 (quoting the standard formula: idra l-udd bil-shubaht); see also idem, Wajz, 2:167; idem, al-Mustaf, 1:382. Cf. Mward, al-Akm al-sulniyya, 254 (attributing it to the Prophet). E.g., Ab Isq al-Shrz, al-Tabira f ul al-fiqh, ed. Muammad asan Hayt (Beirut: Dr al-Fikr, 1980), 1:485 (indicating that the Prophet said both idra l-udd ... bil-shubaht and ... m staatum); Sayf al-Dn Ab Bakr al-Qaffl al-Shsh, ilyat al-ulam f marifat madhhib al-fuqah, ed. Ysn Amad Ibrhm Dardikah (Amman: Maktabat al-Risla al-adtha; Mecca: Dr al-Bz, 1988), 8:7-15; Ab l-Qsim al-Rfi, al-Azz shar al-Wajz, ed. dil Amad Abd al-Mawjd and Al Muammad Muawwa (Beirut: Dr al-Kutub al-Ilmiyya, 1997), 11:144-50 (citing the udd maxim as a prophetic adth, e.g., on p. 145); Muy l-Din al-Nawaw, Minhj al-libn, ed. Amad b. Abd al-Azz al-addd (Beirut: Dr al-Bashir, 2000), 3:206; idem, al-Majm shar al-Muhadhdhab, ed. Muammad Najb al-Mu ([Cairo]: Maktaba alAlamiyya bil-Fajjla, 1971), 18:375, 385; idem, Rawat al-libn, ed. dil Amad Abd al-Mawjd and Al Muammad Muawwa (Beirut: Dr al-Kutub al-Ilmiyya, 1992), 7:306-13; Muammad al-Khab alShirbn, Mughn al-mutj il marifat man alf al-Minhj, ed. Al Muammad Muawwa and dil Amad Abd al-Mawjd (Beirut: Dr al-Kutub al-Ilmiyya, 1994), 5:442-45; Ibn ajar al-Haytam, Tufat almutj shar al-Minhj, ed. Abd Allh Mamd Muammad Umar (Beirut: Dr al-Kutub al-Ilmiyya, 2001), 4:118-21 (citing the udd maxim as a prophetic adth, e.g., on p. 118, and as a khabar a on pp. 11920); Ibrhm b. Muammad al-Bjr, al-shiya al Shar Ibn Qsim al-Ghazz (Beirut: Dr al-Marif, 1974), 2:383-90.
83 He discusses the maxim and its various applications under the title al-Qida f l-shubaht al-dria liludd (on the maxim regarding udd-averting doubts or ambiguities), amongst other principles ranging from the general objectives of the law (maqid) and rules of propriety (adab) to legal maxims proper. See al-Izz b. Abd al-Salm, al-Qawid al-kubr, ed. Nazh Kaml ammd and Uthmn Jumua amriyya, 2nd ed. (Damascus: Dr al-Qalam, 2007), 2:279-80. He is not, however, concerned with the origins of the maxim, and thus does not present it as a adth or discuss whether he deems it to be one. 84 82

Suy, Ashbh, 236-38 (citing the standard formula and listing various applications of the maxim). Suys discussion occurs in a chapter entitled al-udd tasqu [instead of tudra] bil-shubaht; for support, he cites the two canonical collections that include this maxim (Ibn Mjah, Tirmidh), the fragment of the work attributed to Ibn Ad, and other later collections. 67

The Mliks are not much different. Ibn Rushd al-afd (d. 595/1198) explains that the Prophet commanded udd avoidance in all cases of doubt or ambiguity.85 Qarf adds that, in applying the maxim, he is following prophetic instructions as well as precedent recorded by Mliks student Ibn al-Qsim (d. 191/806) in cases of ignorance. He also purports to be following Ibn Ynuss practice, which explicitly attributed the maxim to the Prophet.86 Other Mliks followed suit.87 By Qarfs time (d. 684/1285), the maxim was firmly entrenched as a adth and legal principle and accordingly appears in his work of legal maxims, which is central to the Mlik legal corpus.88 Sh jurists follow a similar pattern. Al-Shaykh al-Mufd (d. 413/947) notes that defective contracts give rise to udd avoidance if entered into in the presence of doubt

85 Ibn Rushd al-afd, Bidyat al-mujtahid, 2:297 (citing the standard formula); see also ibid., 2:324 (noting that all jurists agreebased on the prophetic adth idra l-udd bil-shubahtthat an element for the crime of zin is the absence of doubt, even if they disagree as to what constitutes doubts that are addaverting).
86

Shihb al-Dn al-Qarf (d. 684/1285), al-Dhakhra f fur al-Mlikiyya, ed. Muammad B Khubza (Beirut: Dr al-Gharb al-Islm, 1994), 12:50-51; cf. ibid., 12:60 (applying it as a adth and maxim to several cases).

Mliks regularly conceive of the maxim as a prophetic adth and apply it as such in deliberations both about legal issues and in actual cases. For deliberations in fiqh works, see, Shams al-Dn al-Dasq, shiyat al-Dasq al l-Shar al-kabr (by Dardr), ed. Muammad Ulaysh ([Cairo]: Dr Iy al-Kutub alArabiyya, [198-?]), 4:337 (wa-qad wurida dra l-udd bil-shubaht ...); li b. Abd al-Sam al-bid alAzhar, al-Thamar al-dn f taqrb al-man shar Rislat al-Qayrawn (Cairo: Dr al-Fala, 2007), 617 (standard version, attributed to the Prophet). For instructions in a manual on judicial administration, see Ibn Farn, Tabirat al-ukkm, ed. Jaml Marashl (Beirut: Dr al-Kutub al-Ilmiyya, 2001), 2:88 (standard version, attributed to the Prophet). For legal opinions arising in actual judicial cases, see, e.g., Amad al-Wanshars, al-Miyr al-murib wal-jmi al-mughrib an fatw ahl Ifrqiya wal-Andalus walMaghrib, ed. M. ajj (Rabat: Wizrat al-Awqf wal-Shun al-Islmiyya, 1981), 2:431 (quoting an opinion of a judge attributing the maxim to the Prophet); ibid., 4:493-95 (same).
88

87

See Shihb al-Dn al-Qarf, Anwr al-burq f anw al-furq (Beirut: Dr al-Marifa, 197-), 4:1307, no. 240 (al-farq bayn qidat m huwa shubha tudra bih l-udd wal-kaffrt wa-qidat m laysa kadhlik). Here he does not attribute the maxim to the Prophet. But he does make that attribution in his Dhakhra, as noted above. Ibn al-Sha, who comments on Qarfs Dhakhra, appears to be an exception to the dominant Mlik trend of attributing the maxim to the Prophet; he explains that even though the maxim is not authentic (a), it is nevertheless applicable because there is juristic consensus that imposing udd punishments can occur only where there is no doubt or ambiguity (shubha). Ibn al-Sha, Idrr al-shurq al Anw al-furq (Umdat al-muaqqiqn), on the margins of Qarf, Furq, 4:316. 68

or ambiguity.89 Ibn Idrs (d. 598/1202) later spells out that the maxim applies simply because the Prophet commanded it. For example, if a soldier takes a portion of war spoils before they have been divided, he should not be punished for theft because, as a soldier, his entitlement to some portion of the spoils creates ambiguity at the intersection between his ownership interest and the rule requiring him to wait for distribution of the spoils. At base, there can be no punishment then because of the statement of the Prophet, universally agreed upon, avoid udd punishments in cases of doubt or ambiguity.90 And the principle is applied elsewhere.91 Al-Allma al-ill notes several types of add-averting doubt in one of his treatises,92 and later jurists articulate the range of Sh shubha as a part of the udd maxims central place in Sh criminal law.93
89 Mufd, al-Muqnia (Qum: Muassasat al-Nashr al-Islm, 1410/[1990]), 789 (al-uqd al-fsida tudri al-add bil-shubaht); see also 787 (citing a version of the maxim twice). He applies the rule to women (victims) accused on zin in instances of alleged coercion, as in rape, see ibid., 787, 789, and instances where a defendant repents before a case is brought before the courts, ibid., 787. Ibn Idrs al-ill (d. 598/1201-2), Kitb al-sarir (Qum: Muassasat al-Nashr al-Islm, 1410/[1989-90]), 3:485 (qawl al-rasl alayhi al-salm al-mujma alayhi idra l-udd bil-shubaht, adduced to require canceling add liability for alleged cases of theft); cf. ibid. 3:475 (on voiding add liability for alleged cases of drinking: fa-innahu qla alayhi al-salm wa-rawathu l-umma wa-jtamaat alayh bi-ghayr khilf: idra ludd bil-shubaht); ibid., 3:446 (on removing add liability for alleged cases of zin: al-khabar al-madhkr al-mujma alayh [wa-] li-qawlih alayhi l-salm idra l-udd bil-shubaht).
91 90

See, e.g., Ab l-al al-alab, Kf, 406 (recognized twice), 413 (same); Ab Jafar al-s, al-Nihya f mujarrad al-fiqh wal-fatw ([Tehran]: Chpkhna-yi Dnishgh, 1342/[1963]), 2:708, 711, 716 (three instances); 2:725, 2:746; Ibn Idrs, Sarir, in addition to citations above, see 3:428, 484 (two instances); 3:432, 446 (two instances); 3:433-4, 445 (two instances), 450, 457 (three instances). Al-Allma al-ill (d. 726/1325), Qawid al-akm (Qum: Muassasat al-Nashr al-Islm al-Tbia liJamat al-Mudarrisn bi-Qum, 1413-1419/[1992-1999]), 3:521-23. Despite its title, which in other contexts means legal maxims, this is not a treatise on legal maxims proper, and its title more accurately relates a more general sense of principles of Islamic legal rulings. Rather, it is a concise listing of fiqh rulings, with brief explanations. For further detail, see idem, Irshd al-adhhn il akm al-aymn, ed. Fris alassn (Qum: Muassasat al-Nashr al-Islmiyya, 1410/[1989-90]), esp. 2:170-92.

92

93

Sh qawid works tend not to list types of shubha that require (or validate) udd-avoidance separately from general discussions about shubha in ul works or citations of the udd maxim in criminal law chapters in fiqh works. Compare al-Wad al-Bihbahn, al-Rasil al-uliyya (Qum: Muassasat al-Allma al-Mujaddid al-Wad al-Bihbahn, 1416/[1996]), 403-04 (describing categories of shubha f nafs al-ukm [i.e., shubha ukmiyya] and shubha f arq al-ukm [i.e., shubha mawiyya]), Muammad Ri al-Muaffar, Ul al-fiqh, ed. al-Ramat al-Ark, 2nd ed. (Qum: Muassasat al-Nashr al-Islm, 1423/[2002?]), 4:314-15 69

B. Juristic Detractors (or Reluctant Adherents) anbal and hir jurists differ greatly from their Sunn and Sh counterparts by questioning or strongly opposing the udd maxim. anbals are ambivalent. They largely reject the maxims prophetic provenance and question the scope of its application, but many apply it nonetheless. hirs are adamant in their complete rejection of the maxim, its attribution, and application. From the beginning, we have noted that, as with the eponyms of the other schools, Amad b. anbal never considered the standard form of the maxim to be a prophetic adth. To be sure, he mentions another version of the maxim as a prophetic adth in his Musnad, but deems it weak, as noted above. Yet, he signals that the application of the maxim was sound in cases of coercion, and perhaps otherwise. These two featurestaken as a reflection of his traditionist jurisprudenceperhaps caused some dissonance in anbal law, such that later anbals are of two minds on the matter. Some apply the maxim, albeit typically without attributing it to the Prophet.94 For example, Ibn anbals student Isq b. Ibrhm disagreed with his teachers view that drinking intoxicating beverages warranted add punishment even when a person
(distinguishing shubaht ukmiyya from mawiyya), with, for example, Muammad al-Fil alLankarn, al-Qawid al-fiqhiyya (Qum: Mihr, 1416/[1995]), 21 (describing shubaht ukmiyya). Muaf Muaqqiq Dmd, an exception, outlines three categories: the first two as labeled elsewhereshubha ukmiyya (in which he includes ignorance of the law [jahl]) and shubha mawiyyaplus a third category (which he culls from the detailed legal rules in fiqh manuals): shubha that arises from coercion and mistake (shubha-yi khaa and shubha-yi ikrh). See Dmd, Qavid-i Fiqh (Tehran: Markaz-i Nashr-i Ulm-i Islm, 1378), 4:54-61. Exceptionally, the anbal scholar is to be found who attributes the udd maxim to the Prophet. See, for example, works by two 5th/10th century scholars, Ibn al-Bann (d. 471/1078-9), al-Muqni f shar Mukhtaar al-Khiraq, ed. Abd al-Azz b. Sulaymn b. Ibrhm al-Bam (Riyadh: Maktabat al-Rushd, 1993), 3:1120-21; Maf b. Amad al-Kalwadhn (d. 510/1116), al-Intir f l-masil al-kibr, ed. Sulaymn b. Abd Allh al-Umayr (Riyadh: Maktabat al-Ubaykn, 1993), 1:313-19. 70
94

does not get drunk. Isq did agree that the act was prohibited, based on a prophetic adth that even small amounts of drinks that are intoxicating in abundance are arm. But he was of the opinion that the add punishment did not apply because of the principle requiring the add to be averted in cases of doubt.95 More tellingly, the erudite scholar Ibn Qudma (d. 620/1223) in his Kf announces that one necessary element for finding a person guilty of committing theft is that there be no ambiguity as to ownership of the stolen item, because udd are averted in cases of doubt. Thus, the father is not punished for stealing his sons or grandsons property due to ambiguities that arise as to the status of his ownership over that property in light of the prophetic statement addressed to a young man, that you and your property belong to your father.96 Compared to the other legal schools assiduous attribution of the maxim to the Prophet by Ibn Qudmas time and the provision here of a prophetic adth to prove his point, Ibn Qudmas invocation of the maxim without a prophetic attribution is striking. He repeats this here and in other works, sometimes referring to the maxim as a foundational principle of criminal law,97 and sometimes citing it to require avoidance of udd punishments in certain cases,98 but neverso far as I can tellon the assumption or assertion that it is prophetic.
95 See Isq b. Ibrhm al-Naysbr (d. 275/888f), Masil al-Imm Amad b. anbal, ed. Ab l-usayn Khlid b. Mamd et al. (Riyadh: Dr al-Hijra, 2004), 2:265.
96 97

Ibn Qudma, al-Kf f fiqh Ibn anbal, ed. Zuhayr al-Shwsh (Beirut: al-Maktab al-Islm, 1979), 4:179.

E.g., Ibid., 4:550 (explaining that the second-hand testimony admissible in most commercial law matters is inadmissible in udd casesli-anna mabnh al l-dar bil-shubaht).

98

See Ibn Qudma, Mughn, 9:116 (noting three other prophetic adths that create ambiguities as to whether a man has an ownership interest in his childrens property sufficient to avoid imposing the udd on him in cases of theft because of the udd maxim (i.e., that udd tudra bil-shubaht); and because the greatest shubha is where a man takes property in which the law gives him a property interest 71

Other anbals follow suit.99 The illustrious and sharp-tongued Ibn Qayyim alJawziyya, student of Ibn Taymiyya,100 advances pointed remarks in this vein. He acknowledges the maxim in the form that punishments (rather than the fixed punishments that form udd laws) are to be avoided in cases of doubt or ambiguity, perhaps using the non-technical term to underscore the non-prophetic nature of the saying or to indicate that it traverses udd-laws proper (to include discretionary punishments, tazr, and retaliation, qi).101 He even applies it to require uddavoidance in extreme situations, albeit on altogether different jurisprudential grounds. We have already seen one sort of alternative ground when Ibn Qudma cited other prophetic adths as grounds for avoiding punishments. Ibn al-Qayyim follows this approach and adds to those textual bases reasons of repentance (tawba),102 necessity (arra),103 and the public interest (malaa).104 In discussing cases of necessity, for example, he says that criminal liability does not attach to anyone who takes food
[ml jaalahu al-shar lahu] then advises him to consume it freely). For his frequent citations to the maxim, see ibid., 12:243-4, 275-77, 345-46, 347-48, 350, 354, 359, 363-64, 451, 501.
99

E.g., Muammad b. Abd Allh al-Zarkash, Shar al-Zarkash al Mukhtaar al-Khiraq, ed. Abd al-Munim Khall Ibrhm (Beirut: Dr al-Kutub al-Ilmiyya, 2002), 3:418 (citing the maxim, but not attributing it to the Prophet); Ibn Kathr, Tafsr (n.p.: Dr al-Fikr, 1401), 2:57. Ibn Taymiyya silently rejects the udd maxim. That is, he is aware of itparticularly given its prominence in Ibn Qudmas worksbut he omits it in his udd opinions. See Ibn Taymiyya, Majm alFatw, ed. Abd al-Ramn b. Muammad b. Qsim al-im al-Najd (Beirut: Mabi Muassasat alRisla, 1997), 34:177ff (section on udd laws, no mention of the maxim). Curiously though, he cites the maxim approvingly in his interpretation of a Qurnic verse governing the authoritativeness of singlesources reports. His citation is somewhat off; it combines the standard version with one usually listed in collections of Tirmidh and others (see Appendix, version 2), but he attributes it to the Sunan of Ab Dwd in a version that no traditionist or jurist knew. See ibid., 15:308 (... kam f Sunan Ab Dwd: idra l-udd bil-shubaht fa-inna l-imm in yukhi f l-afw khayr min an yukhi f l-uqba).

100

101

Ibn Qayyim al-Jawziyya, Ilm al-muwaqqin, ed. h Abd al-Raf Sad (Beirut: Dr al-Jl, 1973), 1:104 (al-uqbt tudra bil-shubaht). Ibid., 3:11. Ibid., 3:13-15. Ibid., 3:11. 72

102 103 104

during a time of famine or to anyone otherwise in need of food.105 Using the language of ambiguity and doubt, he says that this (need for nourishment) creates a strong doubt as to culpability that (requires) avoidance of the punishment from the one in needdoubts certainly stronger than many of the so-called ambiguities adduced by several jurists. Accordingly, Ibn al-Qayyim criticizes the anafs and other jurists for applying the rule willy-nilly at the first sign of potential doubt, which no one in their right mind would have believedabsent the overuse of the maximwas actually a add-averting ambiguity. Rhetorically, he asks how a jurist can consider the legal posture of a case to be ambiguous simply because it involves situations such as the following: taking perishable items or items that were once in the commons and freely available (such as water), destruction rather than outright theft of an item kept in a secure location, repeat thefts, or the incoherent anaf rule of avoiding the add punishment for a sex crime when a person has incestuous relations under the guise of a marriage contract (even though some anafs would apply the add sanction to a man who mistakenly thinks that the woman with whom he had intimate relations was in fact his wife).106 Even if one accepts that the udd maxim is prophetic and warrants application on that basis, what leads jurists to presume that the existence of a per se invalid marriage
105 Ibid., 3:15 (referring to such instances as maa arrat al-mutj).
106

Ibid., 1:314-15. In sharp contrast with the majority view, some anafs hold that, if a man finds a woman sleeping in his house or bed and has intimate relations with her on the assumption that she is his wife, he is add-eligible if she turns out not to be. See, e.g., Qudr (d. 428/1037), Tajrd, 11:5899; Sarakhs (d. 483/1090), 9:65 (quoting Hidya). However, Ab anfa and the handful of anaf jurists who follow him on this matter (the rest follow Ab Ysuf and Shaybns opinion to the contrary) developed a category of shubha that may be called contractual, which would exculpate the offender in like cases. Under this category of shubha, whenever a legal act is performed on the basis of a contract, even if defective from the onsetsuch as marrying a sibling, even if knowinglythe existence of the contract creates the semblance of legality; that semblance is a add-averting shubha under this maxim. 73

contract, as between siblings, or a quasi-intentional homicide is the kind of ambiguity to which the maxim refers, to dispense with the add punishment for zin or the retaliation requirement for homicide respectively?107 In a play on words, Ibn al-Qayyim attacks his colleagues from other schools, saying that the jurists who find such cases to be confused or ambiguous (i.e., to have shubha) are the ones who have confused (ishtabaha) cases that incur add liability with ones that do not.108 Given the questionable status of the maxim (as applied) in early anbal works, by the time of the rise of concentrated scholarship on legal maxims, major anbal jurists writing in the field do not mention it. Ibn Rajab, in his Qawid, the principal anbal text on legal maxims, omits the maxim completely.109 In certain cases, he avoids udd punishments, such as homicide of a Muslim against a non-Muslim, theft from a non-secure location or by stealth (as in fraud or embezzlement), and theft of food during a time of famine. In these cases, liability for the udd punishments is canceled because of a textual or other legal impediment, as Ibn al-Qayyim had explained in more detail; for Ibn Rajab, liability for the punishment is not completely removed, but the avoided add sanction is to be replaced with a heavy non-add punishment.110 Ibn al-Lam, in his work on legal maxims, does cite the udd maxim;
107 Ibn al-Qayyim, Ilm, 1:241.
108 109

Ibid., 3:15.

See Ibn Rajab (d. 795/1393), Qawid (Mecca: Maktabat Nizr Muaf al-Bz, 1999). Others writing on legal maxims simply are not concerned with udd laws. Ibn Taymiyyas book, al-Qawid al-fiqhiyya alnrniyya, ed. Amad b. Muammad al-Khall (Dammm: Dr Ibn al-Jawz, 1422/[2001-2]), covers solely legal maxims concerned with commercial law. See Abd al-Karm b. Muammad al-Lim, Shar Tufat ahl al-alab f tajrd ul Qawid Ibn Rajab (Riyadh: Kunz Ishbliyy lil-Nashr wal-Tawz, 2006), 435-37 (in the chapter called man suqiat anh aluqba bi-itlf nafs aw araf maa qiym al-muqta lah li-mni fa-innahu yataaaf alayh al-ghurm, requiring, for instance, a Muslim to pay blood money equivalent to that of another Muslim for intentional homicide of a non-Muslim). 74

110

for him, it is the expression of the uniform opinion amongst all jurists that there is no add- or qi-liability for minors because [of the udd maxim] and given that minority creates uncertainty (shubha) as to moral or legal culpability.111 But he, like most anbals, does not attribute the maxim to the Prophet;112 and the reasons for avoiding the add sanction are really some legal impediment (here: missing element of the crime) rather than a genuine confusion of law or a mistake of fact as discussed by other jurists. * * *

The hirs are unequivocal in their view: they reject the maxim outright. Ibn azm lambasts those who deem it permissible to avoid udd sanctions and makes several arguments as to why.113 For one thing, the maxim has no legal basis in his eyes, becausecontrary to the widespread notion amongst later jurists attributing the maxim to the Prophetit is invalid, inauthentic, and definitely not prophetic.114
111 Ibn al-Lam, al-Qawid wal-fawid al-uliyya, ed. Muammad mid al-Fiq (Cairo: Mabaat alSunna al-Muammadiyya, 1956), 1:29 (citing a version of the standard formula: al-udd tudra bilshubaht). I have noted a couple of exceptions, noticeably in the 5th/11th century, at which time the other schools have started regularly invoking and emphasizing the maxim as a prophetic adth: the two leading anbal scholars Ibn al-Bann (d. 471/1078-9) and Maf b. Amad al-Kalwadhn (d. 510/1116) (though the same is not true just a generation before, judging by the works of their more famous, slightly older contemporary, Q Ab Yal (d. 458/1066)). See above, note 94. For Ab Yals udd jurisprudence, see his al-Jmi al-aghr, ed. Nir b. Sad b. Abd Allh al-Salma (Riyadh: Dr Alas), 307ff. But see Ab Yal, al-Akm al-sulniyya, ed. Muammad mid al-Fiq (Cairo: Muaf al-Bb al-alab, 1966), 263, 265-66 (mentioning shubha and udd avoidance, but not as a adth and only in the context of defending anbal views on issues that are more polemical than authentically anbal in what seems to be a refutation or anbalization of the Shfi jurist Mwards famous tract on political theory of the same name).
113 112

Ibn azm, Muall, 12:57-63 (masalat hal tudra al-udd bil-shubaht am l), esp., 12:61-3, where he specifically criticizes the anafs, Mliks, and Shfis, in the order that he has ranked them according to their support for the maxim.

114 Ibid., 9:428; 8:252 (m ja an al-Nab qau). To be sure, some non-hir jurists realized this as well (e.g., the Mlik jurist Ibn Sha, as described above note 88). But acknowledging that the maxim did not originate with the Prophet formally did not translate into invalidation of the principle. Those scholars, whose jurisprudence was more pragmatic and principle-based than formalistic and strictly text-based, saw substantive canons as precedents emanating from prophetic practice if not prophetic verbal

75

Purported maxims-as-adths are, for him, merely statements of Companions sometimes attributed to the Prophet, and thus non-normative for law. For example, a look at the most-quoted form of the maxim, which appears in Abd al-Razzqs collection on the authority of Umar (as reported by Ibrhm alNakha), reveals that it is patently inauthentic. Ibrhm al-Nakha was born after Umar died!115 Moreover, even the authentic adths on which udd maximproponents rely to shore up their positions contain no evidence that the presence of shubha drove the Prophets decisions. Thus, a adth about a member of the early Medinan community, Miz, who confessed to committing zin, but whom the Prophet turned away four separate times before finally ruling that the add sanction was due, is unrevealing about how to approach criminal law. Proponents of the udd maxim point to reports of Companions discussions to the effect that the Prophets actions had to do with the presence of shubha, but Ibn azm rejects such post-hoc explanation, calling it the mere speculation of the maxim-proponents, not the law. The law says that udd sanctions are mandatory when someone has confessed to a crime.116 Second, Ibn azm says, the maxim itself runs counter to the weight of all recognized Islamic legal authority. The Lawgiver announces certain legal prescriptions and proscriptions, notes that His laws (udd) are not to be transgressed, and imposes
directives. And for them, the attestations of the practice in early Islamic criminal law sufficed to provide a basis for later Islamic criminal law. In other words, the non-prophetic provenance was problematic only for formalist-textualist schools of law that purported to build the law solely on explicit textual directives pronounced by God or the Prophet. Amongst the Sunns, this includes some anbals and hirs. Amongst the Sha, Akhbrs can be added in certain cases. (Though I know of no Akhbr who has acknowledged that the maxim is not prophetic, Akhbrs place wide-ranging restrictions on the scope of the maxim in line with certain theological-jurisprudential principles that also arise from their textualist-formalist orientation.)
115 116

See above, note 82. Ibn azm, Muall, 8:252. 76

certain punishments when they are.117 Where the foundational sources stipulate certain udd punishments for specified crimes, applying the udd maxim would lead to neglecting the udd laws entirely, for anyone who could proffer claims of ambiguity to void the punishment would do so by invoking the maxim. Canceling udd liability so widely would cut against the consensus of Muslims, the Qurn, and the Sunna.118 Finally, Ibn azm finishes, attempts to apply the maxim are incoherent. anafs and Mliks, whom he deems amongst the staunchest proponents of the maxim, are also amongst the harshest criminal law enforcers. Mliks would impose udd punishments for fornication on an unmarried woman with the circumstantial evidence of pregnancy even if she denied having committed a sex crime knowingly or voluntarily; this, despite the existence of all kinds of possible ambiguities, such as the possibility that she was raped, became pregnant during a valid marriage that was not publicized, or was temporarily insane.119 anafs would impose the punishment for theft against accomplices who merely accompany a thief into a house, without ascertaining whether the accomplice was a knowing and willing participant to the crime. If these do not constitute ambiguities and doubts as to the establishment of a crime that, even in the jurisprudence of doubt championed by udd maximproponents, should avert the add punishment, then the entire conception and application of the maxim is incoherent. With the maxim, proponents merely
117 Ibid., 9:428 (citing a prophetic adth that life, honor, and other values are sacred, and Qurn, 2:229, to the effect that Gods laws (udd) are not to be transgressed). This is an equation of udd as moral boundaries to udd in the sense of fixed criminal laws, which was the ordinary sense in which most Muslim jurists came to regard the termthough contemporary scholars have pointed out that the first sense is Qurnic while the second is not. See, e.g., Mohammad Hashim Kamali, Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia, Arab Law Quarterly, 13, 3 (1998): 203-34.
118 119

Ibn azm, Muall, 9:428. Ibid., 8:252. 77

complicate matters, transgress the law, and apply rules disparately. In Ibn azms view, shubha has nothing to do with enforcing criminal law. In fact it is illegal [either] to avoid criminal sanctions in cases of shubha or to impose them in cases of shubha. For him, the matter is simple: if the crime is established (and the accused found culpable), the add punishment is to be imposed; otherwise, when there is only shubha, punishment itself is impermissible.120
VI. Conclusion

During the first three centuries after Islams advent, adth scholars and jurists circulated versions of the udd maxim in two different spheres. Whereas the former group used one type of formulation (as much as you can, some mention of ambiguity, and usually a rationale) the jurists used another (the standard version, idra l-udd bil-shubaht). So far as we can tell from the sources, both types were in circulation simultaneously at least by the mid-2nd/8th century. Amongst the jurists, even at that time, the standard version was a substantive canon of settled law that reflected earlier precedents. The udd maxim was not a prophetic adth. A common link analysis of the adth-as-maxim would trace its prophetic attribution (or origin) to Zuhr (d. 124/742) and Ibrhm al-Nakha (d. ca. 96/717). Yet Schacht concluded that the maxim emerged at the time of Ibrhm al-Nakhas student ammd, in part because he believed Ibrhm to be mythical, and in part because he did not have access to the sources showing Zuhr as a common link. Fierro concluded that the as much as you can
120 Ibid., 12:57 (al-udd l yaull an tudra wa-l an tuqm bi-shubha wa-innam huwa l-aqq li-llh tal wal mazd, fa-in lam yathbut al-add lam yaull an yuqm bi-shubha ). Strikingly, even though Ibn azm rejects the basis and formulation of the udd maxim, this statement virtually aligns his jurisprudence albeit through other meanswith that of udd maxim-proponents. 78

adth form of the maxim was in fact circulating at the time of Ibrhm al-Nakha. The popularized juristic version must have been a later modification of the adth-versions, she reasons, because there was a need to coat that too-broad version with a legalistic patina by using shubaht as a technical legal term in place of the unwieldy as much as possible formulation; it could then be used more legitimately by jurists who tended to privilege (and benefit from) social status in their judgments. Her analysis is a surprising reversal of a Schachtian conclusion (had he distinguished between the two types as she did), which views anonymous sayings like the juristic form of the maxim as older than the isnd-clad adth forms. Ultimately, however, these views are not supported by the sources, which reveal the simultaneity of the two versions and a late adoption of a spliced version highlighting issues of social class. Politics and social status played a role in applications of the maxim and other areas of law. In fact, the jurists increasing insistence on forms of the maxim and sayings that countered hierarchy and emphasized mandatoriness of udd enforcement underscores the extent to which jurists militated against preferential treatment in udd laws. Too, political authorities exercised extremely wide discretion over criminal matters ostensibly within their enforcement jurisdiction (including udd sanctions, laws of retaliation, and discretionary punishments), to which jurists readily extended the udd maxim. For these reasons, jurists both in favor of and against the maxim attempted to define legally cognizable add-averting doubts and ambiguities or to find other means of curtailing arbitrary enforcement of udd laws. While some dispensed with the maxim altogether, most tried to refine and strengthen it for these purposes.

79

As the law developed, the maxim took on a standardized form in most juristic works of the 4th/10th century onward. The udd maxim (idra l-udd bil-shubaht) became a prophetic adth for anaf, Mlik, Shfi, and Sh jurists, whose founders had cited and employed the maxims themselves (though not with prophetic attributions). The matter grows to be so certain (or necessary) to them that the maxim becomes both a central legal maxim of Islamic criminal law and a prophetic adth to bolster the authenticity and reach of such a seemingly law-flouting maxim used to avoid udd punishments. As a result, the maxim appears not only in these schools books of law but also in compendia of legal maxims that attempt to extract the essential principles of the law, often right alongside some five universal maxims. The udd maxim is so securely entrenched that it seems a necessary feature of law, and must therefore be prophetic. It has become a super-precedent. This was the ready answer of most later juristic proponents of the udd maxim to the initial question posed: How does a judge really know when to punish the accused and what to do in cases of doubt given the appearance or accusation of criminal misconduct? Only the traditionist-textualist juriststhe hirs and some anbalswere consistently attuned to the non-prophetic pedigree of the maxim. This realization caused many of them to reject the maxim as both adth (in attribution) and substantive canon (in application). Their answer to questions of doubt was otherwise.121

121 Over time, most jurists elaborated complex and school-specific definitions for doubt and ambiguity (shubha) and applied the doctrine of udd avoidance in very different ways when beset with doubt. Chapters 3 through 6 expand on questions of the definition and role of doubt (shubha) amongst the various schools of Islamic law in theory and in practice, including juristic views applying the udd maxim as well as those opposing it in favor of other strategies. 80

APPENDIX adth Versions of the udd Maxim (with isnds/chains of transmission) Version 1 Avoid udd punishments wherever you find an opportunity to do so. (Idfa l-udd m wajadtum lah madfaan.) Ibn Mjah (d. 303/915)122 Abd Allh b. al-JarrWakIbrhm b. [al-] FalSad b. Ab SadAb HurayraMuammad Version 2 Avoid udd punishments involving Muslims to the extent possible; if there is an exculpating cause for [the accused], then release him, as it is better that the Imm make a mistake in pardoning than in punishing. (Idra l-udd an al-muslimn m staatum fa-in kna lah makhrajan fa-khall sablah fa-inna l-imm in yukhi f l-afw khayr min an yukhi f l-uqba.) Abd al-Razzq (d. 211/826)123 Ibn Ab Shayba (d. 235/849)124 Tirmidh (d. 279/892)125 (1) ThawrammdIbrhm [al-Nakha] [anonymous] (2) Wak [b. al-Jarr]Yazd b. Ziyd al-Bar ZuhrUrwaisha (3) Ab Amr Abd al-Ramn b. al-Aswad al-Bar Muammad [b.] RabaYazd b. Ziyd alDimashqZuhrUrwaishaMuammad

122 Ibn Mjah, Sunan, ed. Mamd Muammad Mamd asan Nar (Beirut: Dr al-Kutub al-Ilmiyya, 1998), 4:161, no. 2545 (bb satr al l-mumin wa-daf al-udd bil-shubaht); Bashshr Awwd Marf et al., eds., al-Musnad al-jmi (Beirut: Dr al-Jl; Kuwait: Sharikat al-Muttaida, 1993-1996), 17:344, no. 13,743. For an English translation, see Muhammad b. Yazeed et al., ed. and trans., English Translation of Sunan Ibn Mjah (Riyadh: Dr al-Salm, 2007). adth critics concluded that this report was extremely weak, as Ibrhm b. Fals narrations were rejected. See, with accompanying footnotes, Ab Yal, Musnad, 11:494, no. 6618; Mizz, Tufat al-ashrf bi-marifat al-arf (Beirut: Dr al-Gharb al-Islm, 1999), 9:468, no. 12,945; Muammad Nir al-Dn al-Albn, af Ibn Mjah, ed. Zuhayr al-Shwsh (Beirut: al-Maktab al-Islm, 1988), 554; idem, Irw al-ghall f takhrj adth Manr al-sabl (Beirut: al-Maktab al-Islm, 1979), 2:356. Abd al-Razzq, Muannaf (1972), 10:166, no. 18,698 (variations in Arabic text: fa-idh wajadtum lilMuslim instead of fa-in kna lah, fa-dra anh instead of fa-khall sablah; fa-innah in yukhi kim min ukkm al-muslimn instead of fa-inna l-imm). Ibn Ab Shayba, Muannaf, ed. Muammad b. Ibrhm al-Ladn and amad b. Abd Allh al-Juma (Riyadh: Maktabat al-Rushd, 2004), 9:360, no. 28,972 (variations in Arabic text: ibd Allh instead of muslimn). Tirmidh, Sunan (n.p.: 1965-1969), 5:112-13, no. 1424; al-Musnad al-jmi, 2:41-42, no. 16,799. Tirmidh points out that the first chain is likely inauthentic because it alone attributes the saying to the Prophet 81
125 124 123

(4) HanndWakYazd b. Ziyd [al-Kf?]... [isha] Draqun (d. 385/995)126 (5) Abd Allh b. Muammad b. Abd al-Azz Dwd b. RashdMuammad b. RabaYazd b. Ziyd al-ShmZuhrUrwaisha Muammad (6) Ibrhm b. ammdal-asan b. Arafa Muammad b. RabaYazd b. Ziyd al-Shm ZuhrUrwaishaMuammad Bayhaq (d. 458/1066)127 (7) Ab l-asan Al Shaqr b. YaqbAb Jafar Amad b. s b. Hrn al-IjlMuammad b. Abd al-Azz b. Ab Razmaal-Fal b. Ms and [his father] MsYazd b. ZiydZuhrUrwa ishaMuammad (8) WakYazd b. Ziyd[Zuhr][Urwa]isha
and does so through Yazd b. Ziyd from Damascus, who was unreliable (af al-adth). He deems the second chain (which he suggests goes back only to isha) to be more sound (aa); it was transmitted by the reliable Wak b. Jarr, likely by way of Yazd b. Ziyd the Kufan, who is preferred and more reliable (aqdam wa-athbat) than the Damascene Yazd. A Companion-attribution is to be expected, as this was a known saying amongst them. Tirmidh, Sunan, 5:112 (noting attributions also to Ab Hurayra [as in Ibn Mjah] and Abd Allh b. Amr [b. al-], without complete chains). Note that Muammad Raba in this edition should be Muammad b. Raba, the Kufan paternal cousin of Wak (see Mizz, Tahdhb alkaml, 25:196-99, no. 5210), as in al-Musnad al-jmi, 2:41-42, no. 16,799. Draqun, Sunan (Beirut: Muassasat al-Risla, 2004), 4:62-63, no. 3097 (variations in Arabic text: transposition of m staatum and an al-Muslimn; fa-in wajadtum lil-muslim makhrajan instead of fa-in kna lah makhrajan). Note that this edition clarifies that what the 1966 edition presents as a single chain at 3:84 is in fact two chains. Like Tirmidh, Draqun has a problem with Yazd b. Ziyd al-Dimashq, whom he deems weak, based on Bukhrs assessment that this Yazds adths are to be rejected (i.e., that he is munkar al-adth) and Nass similar conclusion (i.e., that he is matrk [al-adth]). Draqun adds that Wak related the saying on the authority of Yazd in a chain that did not trace back to the Prophet (mawqf) and agreed with Tirmidh that this chain was more reliable. Bayhaq, Sunan, 8:413, nos. 17,057-58 (variations in Arabic text for first version (chain #s 7-9): same as Draquns version above, with the addition of lah after fa-inna l-imm in yukhi f l-afw khayr). Like Tirmidh and Draqun, Bayhaq found the chain ending in isha (chain #8), to be inauthentic because of Yazd b. Ziyds unreliability (fh af). He also found weak the chain reported by Rishdn (chain #9), which is also traced back to the Prophet, because of Rishdns unreliability (i.e., that he is af). The more sound chain (aqrab il l-awb) then is that of Wak (chain #4), as Tirmidh and Draqun concluded. Ibid. Note that Tirmidh reports that this chain contains and stops with Yazd b. Ziyd [al-Kf]. Bayhaq traces that chain back to isha via Yazd b. Ziyd [al-Shm?]ZuhrUrwa. There is some confusion as to whether the Yazd b. Ziyd in this chain is Kufan or Damascene (Shm), as noted more extensively above, note 18. Bayhaqs editor says that he is Damascene; but Tirmidh was aware of the difference and said that he was Kufan. Fierro has suggested that this was a deliberate substitution, a matter which requires further study. Finally, see also Bayhaq, Sunan, 8:414, no. 17,062 (variations in Arabic text from the second version [chain #10]: an al-muslimn omitted; innakum and appropriate verbs instead of imm, dar al-add repeated twice, and the first and second parts of the maxim transposed). This version of the report is not attributed to the Prophet, but to the Companion and Kufan jurist Ibn Masd (mawqf[an]); Bayhaq has no comment, apparently accepting the attribution of the saying to Ibn Masd through Ibrhm al-Nakha. 82
127 126

(9) Rishdn b. SadUqaylZuhr... [Muammad: marf[an]] (10) Ab zim al-fiAb l-Fal Khamrwayh Amad b. NajdaSad b. ManrHushaym UbaydaIbrhm [al-Nakha][Abd Allh] Ibn Masd Version 3 Avoid udd (punishments) involving believers to the extent possible. (Idra l-udd an ibd Allh m staatum.) Ibn Ab Shayba (d. 235/849)128 Ibn Fuaylal-AmashIbrhm [al-Nakha] [anonymous: kn yaqln] Version 4 If add [liability] is doubtful [to you], then avoid [the punishment]. (Idh shtabaha [alayk] al-add fa-draah.) Ibn Ab Shayba (d. 235/849)129 (1) Abd al-Salm [b arb]Isq b. Farwa [sic = Isq b. Abd Allh b. Ab Farwa]Amr b. Shuayb his father [= Shuayb b Muammad]Mudh [b. Jabal], [Abd Allh] Ibn Masd, and Uqba b. mir (2) Muammad b. Abd Allh b. GhaylnAb Hishm al-RafAbd al-Salm b. arbIsq b. Abd Allh b. Ab FarwaAmr b. Shuaybhis father [= Shuayb b. Muammad]Mudh b. Jabal, Abd Allh b. Masd, and Uqba b. mir al-Jahn (3) Abu zim al-fiAb l-Wald al-Faqhalasan b. SufynAb Bakr b. Ab ShaybaAbd al-

Draqun (d. 385/995)130

Bayhaq (d. 458/1066)131

128 Ibn Ab Shayba, Muannaf, 9:359, no. 28,966. This version is similar to the one recorded in Ibn Mjah (version 1), using different phrasing (idra instead of idfa and idh staatum instead of m wajadtum lah makhrajan), and similar to the version recorded by Tirmidh (version 2), except that it excludes the second part of that adth. He does not comment on the authenticity of the chain, as it is an anonymous saying adopted by Ibrhm al-Nakha.
129 130

Ibid., 9:359, no. 28,964. He does not comment on the authenticity of the chain.

Draqun records the same text (with the addition of m staat) and the same chain, as far back as Abd al-Salm b. arb, who then transmits the statement to Ab Hishm al-Rif (rather than to Ibn Ab Shayba, as in Bayhaqs version below). Draqun, Sunan, 4:63-64, no. 3099 (reporting that this chain is weak because of the presence of Isq b. Farwa, whose adths are to be rejected (matrk qawluh)).
131 Bayhaq, Sunan, 8:414, no. 17,063 (Arabic text: idh shtabaha l-add fa-drah). He does not trace this back to the Prophet and has no comment.

83

Salm b. arbIsq b. Ab Farwa [sic = Isq b. Abd Allh b. Ab Farwa]Amr b. Shuaybhis father [= Shuayb b. Muammad]Mudh (b. Jabal), Abd Allh b. Masd, and Uqba b. mir Version 5 Avoid [sentences of] death and flogging involving Muslims to the extent possible. (Idra l-qatl wal-jald an al-muslimn m staatum.) Ibn Ab Shayba (d. 235/849)132 Bayhaq (d. 458/1066)133 (1) WakSufynimAb WilAbd Allh [b. Masd] (2) Ab Abd Allh al-fiAb l-Wald al-Faqh Muammad b. Zahr [or Zuhayr]Abd Allh b. HshimWakSufynim [b. Bahdala]Ab WilAbd Allh [b. Masd] Version 6 Avoid udd [punishments] wherever there is doubt. (Idfa l-udd li-kull shubha.) Ibn Ab Shayba (d. 235/849)134 Abd al-AlBurdZuhr Version 7 That I suspend udd [punishments] where there is doubt is more preferable to me than imposing them where there is doubt. (La-an uail al-udd bil-shubaht aabb ilayya min [an] uqmah f l-shubaht.) Ibn Ab Shayba (d. 235/849)135 Bayhaq (d. 485/1066)136 (1) HushaymManral-rithIbrhm [alNakha][...]Umar b. al-Khab (2) Ab hir al-FaqhAb Bakr al-Qan Ibrhm b. al-rithYay b. Ab Bukayral-

132 Ibn Ab Shayba, Muannaf, 9:360, no. 28,968. He records this chain, which ends in a Companion, without commenting on its authenticity.
133 134

Bayhaq, Sunan, 8:414, no. 17,064 (transposing jald and qatl).

Ibn Ab Shayba, Muannaf, 9:360, no. 28,967 (or bi-kull shubha, according to the editors footnote). He does not comment on the authenticity of the report, which is attributed to Zuhr. Ibid., 9:359, no. 28,963.

135 136

Bayhaq has a similar version, also attributed to Umar, but with slightly different language. See Bayhaq, Sunan, 8:414, no. 17,061 (Arabic text: idh aartumn fa-sal f l-ahd jahdakum fa-inn in ukhi f l-afw aabb ilayya min an ukhi f l-uqba). Bayhaq has no critical comments, though li does not transmit directly from Umar. There is likely a link missing in the chain to Umar, as he was an adult 84

asan b. lihis father [= li b. li b. ayy] [...]Umar Version 8 If perhaps and maybe apply to [determining liability for] the add crime, there is no add liability. (Idh balagha f l-udd laalla wa-as fa-l-add-muaal.) Abd al-Razzq (d. 211/826)137 Ibrhm b. Muammadan associate (ib lah) al-ak b. MuzimAl Version 9 Avoid udd [punishments]. (Idra l-udd.) Draqun (d. 385/995)138 (1) Muammad b. al-Qsim al-ZakariyyAb KuraybMuwiya b. HishmMukhtr alTammrAb MaarAlMuammad (2) Ab Bakr b. al-rith al-IbahnAl b. Umar Muammad b. al-Qsim al-ZakariyyAb KuraybMuwiya b. HishmMukhtr alTammrAb MaarAl[Muammad: marf[an]] Version 10 Avoid udd [punishments], though it is improper for the Imm to neglect them [completely]. (Idra l-udd wa-l yanbagh lil-imm an yuail al-udd.) Bayhaq (d. 458/1066)140 Ab Bakr b. al-rithMuammad b. ayynIbn Ab imal-asan b. AlSahl b. ammdal-

Bayhaq (d. 458/1066)139

before his son al-asan (d. 169/785-6) was born in the year 100. See Mizz, Tahdhb al-kaml, 13:54-56 (li); ibid., 6:177-91 (al-asan).
137 138

Abd al-Razzq, Muannaf (1972), 7:340-41.

Draqun, Sunan, 4:63, no. 3098. He notes that the report is not sound because Mukhtr al-Tammr is unreliable. Although this version seems to be a truncated form of previous ones, I have counted it separately because its chain, uniquely among Sunn collections, attributes it to the Prophet via Al; this formulation is also the beginning of other versions in Sh collections that attribute the standard version of the saying to Al.

139

Bayhaq, Sunan, 8:414, no. 17,059. The content and the chain are the same as the record above, except that the report comes to Bayhaq through Muammad b. al-Qsim to Al b. Umar rather than Draqun. Bayhaq rejects this as well, saying that the chain is not sound.

140

Ibid., no. 17,060. Bayhaq too considers this report unreliable, because Bukhr determined that Mukhtr b. Nfis narrations are to be rejected (munkar al-adth). Cf. Shawkn, Nayl al-awr, eds. 85

Mukhtr b. NfiAb ayyn al-Taymhis father [Sad b. ayyn]AlMuammad Version 11 Avoid udd [punishments] where there is doubt, and overlook the faults of the nobles except as regard to udd [crimes]. (Idra l-udd bil-shubaht wa-aql l-kirm athartihim ill f udd Allh.) Q Numn (d. 363/974)141 Ibn Ad (d. 365/976)142 (1) [no isnd] (2) Ibn LahaYazd b. Ab abbIkrimaIbn Abbs (3) Ibn Abbs [no isnd]
Muammad allq and Izz al-Dn Khab (Beirut: Dr Iy al-Turth al-Arab, 1999), 7:109, who rejects adths such as this one with Mukhtr b. Nfi in the chain for the same reason. (Shawkn gives the standard version, but he must mean version 7, where this Mukhtr appears.) The word I have translated as neglect completely (yuail) also means to void, cancel out, discontinue, or (permanently) suspend. This version is interesting because it combines udd-avoidance as in version 9 (or all other versions in truncated form) with a principle that seems to conflict with the rationale offered in versions 2 and 7. In those versions, the exponents of the maxim (variously Companions Ibn Masd, isha, and Umar plus the traditionist Zuhr and jurist Ibrhm al-Nakha) err on the side of caution, warning that it is better to pardon offenders mistakenly than to punish non-offenders falsely. Versions 7 and 10 (which offers no rationale) uses language that parallels language here (tal al-udd, muaal); I have translated it differently there (suspend) to reflect its implicit reference to case-by-case individual determinations of udd liability. In this version by contrast, the exponentsaid to be the Prophet through Alwarns against completely neglecting udd laws. The subtext is that udd punishments are necessary to give effect to Gods prerogative and His will in legislating them in the first place, as Ibn azm reasons above.
141

Q Numn, Daim, 2:463 (variation in Arabic text: adds add min before udd Allh) (cited in abars, Mustadrak al-Wasil, 18:26, no. 21,911 (in bb annahu l yamn f l-udd wa-anna l-udd tudra bilshubaht)). Q Numn lists another version with wording echoing the udd maxim in his chapter on udd: avoid [punishing] the believer as much as you can (dri an al-mumin m staat ). Ibid., 2:442-43.

See Badr al-Dn al-Ayn, Umdat al-qr, 20:259; see also Suy, Jmi, 1:135, no. 793. For notes on the difficulties involved in tracing this version to Ibn Ad, see above, note 54 and accompanying text. In addition to that explanation, another issue worth mentioning is that this version appears only in the 4th century after the Hijra. It may be tempting to think that Ibn Ad or whoever formulated the compound maxim did this through copying it and its attribution to Ibn Abbs from Ab anfas Musnad by rith (same formula). Indeed, Albn suggests that such a borrowing is possible, asserting that Ibn Ads record of the adth matches riths records from Ab anfa in both form and isnd, Albn, Irw alghall, 7:345. But this is not what occurred. The two are in fact different: rith never mentions the aql saying; if anything the copyist would have appended that saying from elsewhere. Albn may have conflated Ab anfas version with this one, based on attributions of this version to Ibn Abbs (by rith in Ab anfas Musnad and by Suy and later scholars) without having compared the isnd or the content. Finally, one might also suppose that Ibn Ad and Q Numn, who were contemporaries, copied the adth from a source common to both Sunn and Sh (Isml) traditionists. There were no known interactions between them, and Q Numn copied from a limited amount of books available to himso far as we know from Madelungs list, from no work that would have included Ibn Ads sources. Instead, we know that Q Numn most probably copied his version of the maxim from a late 2nd/8th century source used also by Zayds. See above, note 65. 86

142

Version 12 Avoid udd [punishments] in cases of doubt or ambiguity, but there is to be no intercession, nor bail, nor oaths in add [proceedings]. (Idra l-udd bil-shubaht wal shafa wa-l kafla wa-l yamna f add.) Ibn Bbawayh (d. 381/991-2)143 Al-urr al-mil (d. 1104/1693)
144

(1) Prophet Muammad [no isnd] (2) Muammad b. Al b. al-usayn... Muammad Standard Version

Avoid udd punishments in cases of doubt or ambiguity. (Idra l-udd bilshubaht.) rith (d. 340/951-2)145 Ibn Bbawayh (d. 381/991-2)146 (1) Ab SadYay b. FarrkhMuammad b. BishrAb anfaMiqsamIbn Abbs (2) Amr al-Muminn [= Al b. Ab lib] [no isnd]

143 Ibn Bbawayh, Faqh, 4:53.

144

According to al-urr al-mil, Wasil al-Sha, 28:48, no. 34,179. The source of this attribution is unclear, as Ibn Bbawayh attributes the saying directly to the Prophet in his Faqh.

Abd Allh b. Muammad al-rith, Musnad Ab anfa, ed. Ab Muammad al-Asy (Beirut: Dr alKutub al-Ilmiyya, 1971), 39, no. 70.
146

145

Ibn Bbawayh, Muqni (Qum: Muassasat al-Imm al-Hd, 1994), 437 (cited in abars, Mustadrak alWasil, 18:26, no. 21,912). 87

Note on translations: Throughout this chapter, I have translated shubha (pl. shubaht) as doubt or ambiguity to cover two senses in which jurists use the term: uncertainties concerning questions of fact (doubt) as well as law (ambiguity). I have rendered the udd maxim as avoid udd punishments in cases of doubt or ambiguity to reflect this dual usage and the fact that jurists determine whether shubha exists in making decisions about add liability. Dar is given alternately as aversion or avoidance. Aversion is the more literal translation (making shubha/shubaht the active agent), but it obscures the fact that the judge or jurist typically acts as agent and addressee of the maxim; he or she is to recognize the legally cognizable types of shubha outlined in the legal texts and avoid imposing udd punishments where they are present; in addition, avoidance better captures the similar sense of a usage in familiar corpus of American legal maxims, such as constitutional avoidance, whereby judges are to avoid the serious consequences of deciding cases on the basis of constitutional doctrines where they can decide them on other grounds. Where relevant legal texts clearly intend to focus on shubha as the operative term, I have retained some form of the word aversion (e.g., add-averting ambiguity). (Alternative translations that are more literal, but more awkward and less communicative of the sense of the maxim, would be, avert udd punishments with doubts and ambiguities, or even use doubts and ambiguities to avert udd punishments.)

Key The following map includes the chains of transmission of the adth versions of the udd maxim from collections circulating in the first three centuries (as listed above). Fourth/tenth and fifth/eleventh century chains are included only if discussed in the text and otherwise not represented in the previous collections directly.
Published collection Problematic transmitter (see notes in main body) Unbroken chain/direct attribution Broken chain/indirect attribution Bold Name Significant figure (discussed in the text and notes)

88

Spread of the udd Maxim as a adth (Isnd Map)

Sad b. Ab Sad

Urwa

Ab Wil

[anonymous]

Ikrima

Ab Maar

Sad b. ayyn

Ibrhm b. Fal

Amr b. Shuayb

im

Yazd b. Ab abb

Mukhtr al-Tammr

Ab ayyn al-Taym

Yazd b. Ziyd

Isq b. [Ab] Farwa Burd

Sufyn

al-rith

ak

Ibn Laha

Miqsam

Muwiya b. Hishm Ab Kurayb

al-Mukhtr b. Nfi

Manr

al-Amash

ammd

[anonymous] Ibrhm b. Muammad Muammad b. Bishr

Sahl b. ammd

Muammad [b.] al-Raba

Abd al-Al

Abd al-Salm

Hannd

Hushaym

Ibn Fuayl

Thawr

Muammad b. al-Qsim al-Zakariyy

al-asan b. Al

Abd al-Ramn b. al-Aswad

Abd Allh b. al-Jarr

Yay b. Farrkh Ibn Ab Shayba (d. 235) Versions 2, 3, 4, 5, 6, 7 Abd al-Razzq (d. 211) Versions 2, 8

Ibn Ab im

Ab Sad

Al b. Umar

Muammad b. ayyn

Tirmidh (d. 279) Version 2

al-asan b. Sufyn Ibn Mjah (d. 303) Version 1 Q Numn (d. 363) Version 12 Ibn Ad (d. 365) (according to Ayn et al.) Version 12

Ab Bakr b. al-rith

al-rith (d. 340) Standard Version Draqun (d. 385) Version 9

Ab al-Wald al-Faqh Ab zim al-fi Ibn Bbawayh (d. 38 Standard Version

Bayhaq (d. 458) Versions 4, 9, 10

89

CHAPTER 2 udd Imposition vs. Avoidance: Law, Society, and the Jurisprudence of Doubt
I.

Introduction Chapter One focused on udd avoidance because we were interested in the

udd maxim itselfits provenance, weight of authority, and standing in the early Muslim scholarly community. That investigation revealed that perhaps within decades after the Prophets death, the maxim had become so central to criminal law jurisprudence that, by the end of the first century, jurists like Ibrhm al-Nakha (d. ca. 96/717) could refer to it as axiomatic.1 Jurists of the succeeding generations followed suit, with leading scholars in every major center of the growing Muslim empire invoking the principle by the mid-2nd/8th century.2 By the turn of the 3rd/9th century, one scholar announces the maxim as one of few principles on which jurists had reached consensus.3 And thereafter, we can see in the udd maxim a principle so wellentrenched that it features even in popular lore as celebrated as One Thousand and One

1 Ibrhm cites the maxim on anonymous authority in the following 2nd/8th- and 3rd/9th-century sources: Ab Ysuf (d. 182/798), Kitb al-kharj, 303 (with the truncated isnd (al-AmashIbrhm [al-Nakha]), as appears in Ibn Ab Shaybas version below); Abd al-Razzq (d. 211/826), Muannaf, 10:166, no. 18,698 (with the following chain: ThawrammdIbrhm [al-Nakha][anonymous]); Ibn Ab Shayba (d. 235/849), Muannaf, 9:359, no. 28,966 (with the following chain: Ibn Fuaylal-AmashIbrhm [alNakha][anonymous: kn yaqln]). For further details, see Chapter 1, note 34 and the Appendix. That is, works by both proto-Sunn and Sh jurists (including Shfi, Ab anfa and his students, Mlik, Q Numn, and Ibn Bbawayh), as well as works recording the judgments of earlier authorities in both camps (e.g., the Muannafs of Abd al-Razzq (d. 211/826) and Ibn Ab Shayba (d. 235/849) on the Sunn side, and records of Als judgments collected by Ibrhm b. Hshim al-Qumm (d. mid-3rd/9th century), Qay Amr al-Muminn on the Sh side). Ibn al-Mundhir (d. 319/930) includes the udd maxim in his slim volume compiling some 765 matters on which jurists had reached consensus by the end of the 3rd/9th century. See Ibn al-Mundhir, al-Ijm, ed. Abd Allh Umar al-Brd (Beirut: Dr al-Jinn, 1986), 132 (wa-ajma al dar al-add bil-shubaht). 90
3 2

Nights and other works by storytellers with a penchant for recounting tales of deliverance from difficult straits.4 This focus on the udd maxim highlights just one side of the story. The very fact that jurists articulate and even exaggerate udd avoidance through the maxim points to a wider socio-political backdrop of actual udd enforcement and other criminal law policies against which the maxim was pushing or perhaps balancing. Furthermore, we know that not every jurist championed the maxim. Amad b. anbal, for one, took a fairly ambivalent stance toward it, and his hir counterparts affirmatively opposed it.5 These observations raise questions about the social and political context that made it necessary for jurists to invokeor opposethe maxim. One theory has it that the maxim emerged from and was subject to exploitation by the elite, and that juristic

4 See Alf layla wa-layla, night 298 (cited and retold in Fierro, When Lawful Violence Meets Doubt, 208-09: recounting a story involving Basran governor Khlid al-Qasrs (r. 105-120, d. 126/743) invocation of the udd maxim). See also Tankh (d. 384/994), Nishwr al-muara, 252-54 (recording the story wherein Ab Ysuf used the maxim to benefit Hrn al-Rashds family). This courtier, himself a judge at one point, was the one known for his affinity to tales about deliverance from thorny situations. See H. Fhndrich, art. al-Tankh, EI2, 10:192 (noting that most of the works attributed to him were compiled under a guiding principle, namely , deeds of karma, of salvation from difficult situations, be they financial, political, social or personal). Ibn azm, a late spokesperson for the hir school, outlines his firm opposition to the udd maxim on grounds of authenticity and a textualist jurisprudential theory. See Ibn azm (d. 456/1064), Muall, 12:57-63. Though we do not have records of their specific criticisms of the udd maxim, it stands to reason that Ibn azms view is representative (if more sophisticated) as that of Dwd b. Al and his sonfounders of hirismwho took a similar textualist approach to law overall. See Muammad alSha, Risla f l-madhhab al-Imm Dwd al-hir (Damascus: Mabaat Rawat al-Shm, 1330/[1911-2]) (collecting legal opinions attributed to Dwd from various works, none of them mentioning shubha and many taking stances opposite to those of jurists who supported the udd maxim); cf. Devin Stewart, Muammad b. Dwd al-hirs Manual of Jurisprudence: al-Wul il Marifat al-ul, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 99-160 (highlighting textualist jurisprudential stances). For a more detailed discussion of the nature of the anbal and hir stances to the maxim on jurisprudential grounds, see Chapter 4. 91
5

opposition to it was meant to curb the abuse.6 From that view, we might get the impression that Ibn anbal or Dwd al-hirs insistence on udd enforcement was particular to their concern with providing a counter-weight against elite jurists who favored udd avoidance in order to benefit their high-status peers during the first three centuries of Islamic rule. We might also gather that there was a fundamental conflict between tendencies to invoke the maxim and thereby avoid udd punishments, and an opposite trend toward udd enforcement. But does this depiction accurately reflect udd jurisprudence and the concerns of the community who articulated the maxim? I seek to complicate this picture by investigating where udd avoidance fell along the spectrum of udd enforcement versus avoidance in the socio-political context of Umayyad and early Abbsid rule. I will argue that, while social status played a major role in the shaping of udd laws and what we may call a jurisprudence of doubt expressed through the udd maxim, there was no one-to-one correspondence between it and support for udd avoidance. Another factor played a significant role namely, a high degree of moral anxiety on the part of jurists responding to shifting social and political developments in the young Muslim community. This anxiety stemmed from the juristic communitys desire for subservience to divine legislative will, which they pursued by forwarding certain moral imperatives presented in the divine law in the face of political pressures and epistemological doubts when it came to criminal law.
6 Fierro, When Lawful Violence Meets Doubt, 236. Fierro counts Ibn anbal amongst the scholarly pious opposition, who saw the as much as you can wording of the adth version of the udd maxim subject to too few constraints and too much abuse by the elite by the mid-2nd/8th century. Ibid. 92

The following discussion describes contests between socio-political valuesas presented in the literary and historical sourcesand moral-legal onesas presented in the early legal sources. I first present the competing values surrounding issues of morality and authority in early Islamic societies then describe the competing tendencies in juristic arenas toward udd enforcement and udd avoidance. I end by presenting, through the lens of criminal law, the great compromise reached between state and juristic authorities over these same issues of morality and authority by the 3rd/9th and 4th/5th centuries. In reviewing the historical reports of Islamic criminal law and legal theory, we observe the emergence of conceptual discussions about a public sphere; through it, jurists propose a pragmatic solution to the contests between them and the state over the authority to define and enforce criminal law. The jurists regulated the moralprivate sphere, and encouraged members of the community to be discreet about their criminal violationstaking it up with God through repentance or otherwise; they also set limits on the criminal sanction in the public sphere through defining the contours of udd laws and expanding the role of doubt. They pursued this later strategy through the udd maxim and what I have termed doubt jurisprudence as a way of guiding or critiquing the admittedly wide jurisdiction of the state over matters of public law and public safety through its police power and duty to enforce criminal law.
II. Competing Values: Morality and Authority

A. Egalitarianism and Judicial Subservience The earliest Muslims exhibited a keen concern with adhering to the dictates of what they considered divine law. Muammad sought to establish a new legal order

93

with God as legislator, himself as Prophet and exponent of Islamic ideals. Several verses in the Qurn instruct Muslims to obey God and his Messenger,7 promising eternal reward.8 As expressed in an important adth that we will call the uqq tradition, the right (aqq) of God vis--vis His servants is that they worship Him and do not associate any partners with Him, and the right of individuals [vis--vis] God is that whoever refrains from associating partners with [Him] will not be punished.9 These texts articulate the desire of the young community to submit to the will of God, as represented by the Prophet and others in positions of authority who, at Islams inception, were both political and religious leaders. In other words, their selection and circulation of these texts indicate that this early community took this duty to obey Islams moral and legal directives seriously. Aside from establishing an uncompromising monotheism and the Prophets authority as apostle of God,10 the major feature of the new order was its emphasis on certain moral precepts.11 The duty to obey the law was taken as a moral calling and of
7 See Qurn, 3:32, 132; 5:92; 8:1, 20, 46; 24:54; 47:3; 49:14; 58:13; 64:12; see also 4:59 (and adding instructions to obey those in authority over you: wa-ul l-amri minkum).
8 9

See Qurn, 4:13, 69; 24:52; 33:71; 48:17.

See Bukhr, a, in Amad b. Al Ibn ajar al-Asqaln, Fat al-br bi-shar a al-Bukhr, ed. h Abd al-Raf Sad, Muaf Muammad al-Hawwr, Muammad Abd al-Mu ([Cairo]: Maktabat alKulliyyt al-Azhariyya, 1978), 12:8-9, no. 2856 (fa-inna aqq Allh al l-ibd an yabudh wa-l yushrik bih shayan wa-aqq al-ibd al llh an l yuadhdhib man l yushrik bih shayan). See also Muslim, a, ed. Muammad Fud Abd al-Bq ([Cairo]: Dr Iy al-Kutub al-Arabiyya, [1955-6]), 1:58-59, nos. 48-51 (with variations); Tirmidh, Sunan, 7:298-99, no. 2645; Ibn Mjah, Sunan, 5:668-69, no. 4296.

10

For a brief description, see Hugh Kennedy, The Prophet and the Age of the Caliphates (Essex: Pearson Education, 1986), 47.

Narratives of this earliest history are a matter of considerable scholarly debate, the contours of which are marginal to the discussion here, which proceeds from areas of broad agreement in early Islamic history. For textbook historical accounts, in addition to Kennedy (ibid.), see Ira Lapidus, A History of Islamic Societies (Cambridge: Cambridge University Press, 2002; first published 1988); Fred Donner, Early Islamic Conquests (Princeton: Princeton University Press, 1981); Marshall Hodgson, The Venture of Islam (Chicago; London: University of Chicago Press, 1974; first published 1961), 1:188-230. For alternative accounts, see Wilferd Madelung, The Succession to Muammad: A Study of the Early Caliphate (Cambridge; New York: Cambridge University Press, 1997) (presenting a narrative from Sh sources); Patricia Crone, 94

11

course encompassed criminal law, the contours of which were considered to be specifically designated by God. As later commentators saw it, the Qurn identifies certain deeds as serious transgressions against key moral values, severely censuring those who commit acts such as murder, highway robbery, theft, wine-drinking, apostasy, and fornication (zin). The Qurn itself sets out punishments for many though not allof these acts,12 to signal the gravity of each act as a moral offense. And it insists that the punishments be enforced where warranted, cautioning against ignoring the criminal laws merely out of lenient attitudes that amount to disregard for the dictates of the law.13 Accordingly, scholars understood these transgressions, which they labeled udd crimes, to be illegal because they threaten particular moral values in the social sphere that Islam set out to promote. Even traditionist-jurists like Dwd al-hirwho we do not know as typically accustomed to focusing on rationales underlying the lawexplain that prohibitions
Roman, Provincial, and Islamic Law: The Origins of the Islamic Patronate (Cambridge: Cambridge University Press, 2002) (testing a hypothesis of Roman borrowing through examining the institution of tribal clientage, wal); see also Robert Hoyland, Seeing Islam as the Others Saw It: A Survey and Evaluation of Christian, Jewish, and Zoroastrian Writings on Early Islam (Princeton: Darwin Press, 1997) (presenting translations of contemporary source materials by observers of Islam outside of the community together with analyses of the sources).
12

Scholars acknowledge that the Qurn does not designate punishments for every act it censures. Specifically, though jurists count them as udd matters, the Qurn mentions no punishment for apostasy or wine-drinking, and stoning is not a Qurnic punishment for adultery. On the post-prophetic designation of the sanction for wine-drinking, see Muammad b. Idrs al-Shfi, Umm, ed. Muammad Zuhr al-Najjr ([Cairo]: Maktabat al-Kulliyyt al-Azhariyya, 1961), 6:144, 179-81. On the generation of reports about stoning as a Qurnic punishment, see Hossein Modarressi, Early Debates on the Integrity of the Qurn: A Brief Survey, Studia Islamica 77, (1993): 5-39. On the anaf and Shfi objections to counting apostasy as a death eligible crime, see Rudolph Peters and Gert J. J. De Vries, Apostasy in Islam, Die Welt des Islams 17, 1/4 (1976-1977): 1-25, 5-6. Textualist criticisms now drive major points of controversy about the legal status of the death penalty as a sanction for apostasy and adultery. See, e.g., Kamali, Punishment in Islamic Law, 203-34. Qurn, 24:2 (The passage refers to zin: As for those who commit zin, female and male [alike], flog each of them one hundred times, and let not compassion for them stay you in a matter of obedience to God if you believe in God and the Last Day; and let a party from the community be witness to the punishment: wal-zniyatu wal-zn fa-jlid kulla widin minhum miata jaldatin wa-l takhudhkum bi-him rafatun f dni llhi in kuntum tuminna billhi wal-yawmi l-khiri wal-yashhad adhbahum ifatun min almuminn.). 95

13

against fornication, theft, and defamation were legislated to deter against mixing bloodlines, taking private property, and impugning honor, respectively.14 Dwds formulation is in the negative vocabulary of deterrence, but the gist of his understanding is shared by most jurists. They typically frame the impetus of criminal laws both negatively as deterrents and positively as mechanisms promoting these same valuesthe preservation of life, religion, sanity (or intellect), honor, property commonly referred to as the five objectives or essential principles of Islamic law (maqid al-shara or al-arriyyt al-khamsa).15 In addition, the new order placed a heavy accent on a type of egalitarianism that stressed preference on the basis of moral excellence rather than bloodlines and wealth.16 The cultural context in which Islam emerged was one in which tribal values championed a type of egalitarianism, as seen through the very limited authority that tribal leaders commanded.17 Hierarchy came through competition; Arabs drew prestige from genealogical rank when coupled with meritorious acts affected to demand honor

14 Dwd al-hir (d. 270/883-4), Uyn al-masil, quoted by Sha, Risla, 27. See, e.g., Miqdd al-Suyr, Nad al-Qawid, 60-63 (listing the five as nafs, dn, aql, nasab [or ir], and ml); Ab Isq Ibrhm b. Ms al-Shib, al-Muwfaqt f ul al-akm, ed. Muammad Muy al-Dn Abd al-amd ([Cairo]: Muammad Al ubay, [1969-70]), 2:2ff (kitb al-maqid); cf. Muhammad Khalid Masud, Islamic Legal Philosophy: A Study of Ab Isq al-Shibs Life and Thought (Islamabad: Islamic Research Institute, 1977).
16 15

Marlow, Hierarchy and Egalitarianism, 2, 4-5 (noting broad types of egalitarianism in Arab monotheism along with Arab tribalismwhich was fiercely competitive in the face of the lack of formal institutional hierarchiesmarking acquired merit (asab) and inherited merit or genealogy (nasab) as organizing principles and containing social and wealth inequalities that could be challenged by show of individual merit).

17

Patricia Crone, Slaves on Horses: The Evolution of the Islamic Polity (Cambridge; New York: Cambridge University Press, 1980), 19-20; Charles Lindholm, Kinship Structure and Political Authority: The Middle East and Central Asia, Comparative Studies in Society and History 28, 2 (1986): 334-55, 334-35 (cited in Marlow, Hierarchy, 5 note 17). 96

and respect.18 Against this backdrop, the Qurn, 49:13, attempted to bolster the spirit of egalitarianism but replace worldly-social criteria for preference with spiritual-moral criteria: O people! We have created you from a male and female and fashioned you into peoples and tribes that you may know one another; surely, the most noble of you in the sight of God is the most God-conscious: y ayyuh l-nsi inn khalaqnkum min dhakarin wa-unth wa-jaalnkum shuban wa-qabilatan litaraf inna akramakum inda llhi atqkum.19 Several other verses stress that sons and wealth will not elevate peoples spiritual station, no matter how much they may elevate their social station. And other verses praise those who believe and do good works, promising them great rewards.20 Further, Islamic historical sources recount attempts to replace the old preIslamic Arabian formula for tribal egalitarianism of lineage plus individual prowess with a Qurnic egalitarianism of piety through governing policies that tended to increase social mobility. Indeed, many Muslims took these verses to unquestionably require broad-stroked egalitarianism in contrast to the pre-Islamic tribal structures and to the distinctions that quickly emerged in early Islamic societydistinctions amongst Arab tribes, between Arabs and non-Arabs, and other types of social hierarchies.21 Corroboration of the historical description of an egalitarian bent in the

18 See eds., art. asab wa-nasab, EI2, 3:238; see also Roy P. Mottahedeh, Loyalty and Leadership, revd ed. (London; New York: I.B. Tauris, 2001 (orig. Princeton: Princeton University Press, 1980), 98-104.
19

For a history of exegetical commentaries on this verse, see Roy Mottahedeh, The Shubyah Controversy and the Social History of Early Islamic Iran, International Journal of Middle Eastern Studies 7 (1976), 161-82.

See Marlow, Hierarchy, 2-3 (citing Qurn, 26:88-89, 18:47, 2:247, 49:13 for the first category, and 16:75, 32:18, 4:95 for the second).
21

20

See ibid. Hodgson refers to jurists who share these sentiments as the piety-minded. See discussion in Hodgson, Venture, 1:241-79. 97

earliest Muslim community is found in reports revealing a negative reaction to reversals of governing policies on its basis, leading to regicide, revolution, and unrest. B. Social Status and Political Power The lofty ideals of pursuing social-moral values undergirding udd laws and spiritual-moral egalitarianism remained largely aspirational. Muammad first advanced them and the later literary sources depict the second and fourth caliphs, Umar and Al (who was also the first Imm for the Sha) especially, to have insisted on egalitarian principles in their governmental policies and moral exhortations.22 But derogation from these principles in the second half of the reign of the third caliph, Uthmn, led to his assassination.23 It also led to a vast amount of social unrest and political restructuring. Once Muwiyawho saw himself as the rightful successor to Uthmn and avenger of his murdertook over the caliphate from Al, the

22 Umar was the first to establish the doctrine of preference based on Islamic priority (sbiqa) for those whom Martin Hinds has called early comers (see below) in their conversion to Islam, in that he rewarded early converts among the Prophets Companions and others. Historians have argued that there was considerable community buy-in and support for this Islamic egalitarian ideal, as policies on its basis seem to have elicited no deep grievances in the way that the shift back to tribal preference did. For anecdotes quoted from early sources recounting Umars egalitarian policies, see Reuben Levy, The Social Structure of Islam, 2nd ed. [1st ed.: The Sociology of Islam (1931-1933)] (Cambridge: Cambridge University Press, 1957), 55-57; Marlow, Hierarchy, 14 (citing Ji, al-Bayn wal-tabyn; idem, Rasil). For discussions of both Umar and Als social-egalitarian bent as manifested in their discomfort with allowing Persian upper-class habits and dress, see Michael Morony, Iraq after the Muslim Conquest (Princeton: Princeton University Press, 1984), 261-62; Marlow, Hierarchy, 15; Riwn al-Sayyid, al-Umma wal-jama wal-sula (Beirut: Dr al-Iqra, 1984), 117 (naart f jadaliyyt al-ilqa bayn al-namdhajayn alsiysiyyayn al-tarkhiyyayn al-rn al-qadm wal-islm al-was). For a study of the factions that aligned against Uthmn in the lead up to his murder, see Martin Hinds, The Murder of the Caliph Uthmn, in Studies in Early Islamic History, ed. Jere Bacharach, Lawrence Conrad, Patricia Crone (Princeton: Darwin, 1996): 29-55, 52-53 (The main conflict in the time of Uthmn was between interests rooted in traditional patterns of leadership and privilege which had emerged in the time of Muammad, Ab Bakr and Umar. [In part,] [t]here was a developing conflict within the provinces between the re-emerging old-style tribal leaders, who possessed political acumen and were capable of mobilizing tribal support, and early-comers of lesser tribal statute who were opposed to any diminution of their independence or reduction of the Islamic privileges acquired by them at the time of the conquest.). For broader context recounting Uthmns policies, see Kennedy, Age of the Caliphates, 6975 (Uthmn and the beginnings of internal strife); Hodgson, Venture of Islam, 1:212-17. 98
23

opportunity for social equalising on the basis of piety criteria came to an end.24 Muwiya adopted a structure of political governance based on kinship ties and inaugurated the first of many dynasties based on bloodlines, supported by political and military structures built on these same bloodlines and tribal loyalties.25 Predictably, this turn was not absolute or without challenge. Some groups, such as the proto-Imms amongst the Alids, insisted on a concept of precedence by some combination of moral-spiritual excellence and familial ties to the Prophet.26 Others, like the puritanical Khrijs who broke off from the supporters of Al, advanced a notion of strict adherence to Gods law (as they defined it) as the qualification for leadership, which included thick notions of spiritual-moral excellence.27 And still others, like the group that came to be known as the Zayds, held that leadership should devolve to a competent leader from the Prophets family who exhibited some degree of spiritual-moral excellence and was willing to assume leadership by way of revolution
24 Ibid. (citing Crone, Roman, Provincial and Islamic Law, 89); Ira Lapidus, The Arab Conquests and the Formation of Islamic Society, in Studies on the First Century of Islamic Society, ed. G.H.A. Juynboll (Carbondale: Southern Illinois University Press, 1982), 49-72 (describing how differences of status amongst Arabs became greater than what they had been in the past); see also the sources mentioned in Marlow, Hierarchy, 14 notes 3-4.
25

For standard overviews, see Kennedy, Age of the Caliphates, 82-123 (Umayyads), 124-199 (Abbsids); Jonathan P. Berkey, The Formation of Islam: Religion and Society in the Near East, 600-1800 (New York: Cambridge University Press, 2003), esp. Part II (emergence of Islam through the Abbsid Revolution). On early Imm political and theological doctrines surrounding the immate, see generally Hossein Modarressi, Crisis and Consolidation in the Formative Period of Shite Islam (Princeton: Darwin Press, 1993); see also ibid., 29-31 (detailing views of 2nd/8th moderate Sh scholars insisting that the Imms were pious, learned men (ulam abrr atqiy) without a divine claim to authority, and that obedience to them was due by virtue of prophetic designation). See also Wilferd Madelung, Religious Trends in Early Islamic Iran (Albany, N.Y.: Bibliotheca Persica, 1988), 77-86; Etan Kohlberg, Evolution of the Sha, in Belief and Law in Imm Shism (Aldershot, Hampshire: Variorum Reprints, 1991), 1-21; idem, Imm and Community in the Pre-Ghayba Period, in Belief and Law, 25-53.

26

On the history and changes in political and legal doctrine of the Khrijs, who came to adopt a more quietist attitude as Ibs, see Tadeusz Lewicki, The Ibdites in Arabia and Africa, Cahiers dhistoire mondiale 13, 1 (1971): 51-130, esp. pp. 51-80 (Part I: presenting the origins, development, and spread of the Ib community from Basra to other parts of Arabia and North Africa in the 7th/13th through 9th/15th centuries); John C. Wilkinson, The Imamate Tradition of Oman (Cambridge; New York: Cambridge University Press, 1987), 1-17; Madelung, Religious Trends, 54-76. 99

27

and rebellion.28 These factions remained a constant threat to each ruling authority so long as they laid claim to leadership.29 As a result, the Umayyads and their successors treated potential political adversaries harshly. Each reign was marked by efforts to maintain control in the face of competing claims to leadership; this often involved violence against individuals who posed political threats. Any perusal of the historical chronicles gives the impression of a series of political intrigues and power struggles.30 Part of the struggle for power involved harshly punishing those who would disturb the existing societal order and thus challenge the political leadership through crime, rebellion, or otherwise. Political opponents and petty criminals were put to death and punished in other severe ways never authorized by the Islamic sources.31 And within that context, punishments were
28 On early Zayd political and theological doctrines, see Madelung, Religious Trends, 86-92; Najam Haider, The Birth of Sectarian Identity in 2nd/8th century Kfa: Zaydism and the Politics of Perpetual Revolution (Princeton University: unpublished PhD dissertation, 2007), esp. 362ff. On developed doctrines, see generally Haykel, Revival and Reform in Islam. For a brief discussion, see Marlow, Hierarchy, 40. For an excellent, concise summary of the various religio-political tendencies discussed in brief here, see Madelung, art. Imma, EI2, 3:1163ff; Mottahedeh, Loyalty and Leadership, 19-20. See especially Ab l-Faraj al-Ibahn (d. 356/967), Maqtil al-libiyyn, ed. Amad aqr ([Qum?]: alMaktaba al-aydariyya, 1423/[2002-3]) (recording the Ald revolts against the Umayyads and Abbsids); see also Ab l-asan al-Ashar (d. 330/941), Maqlt al-Islmiyyn wakhtilf al-mualln, ed. Muy l-Dn Abd al-amd (Beirut: al-Maktaba al-Ariyya, 1990), 1:136-65(listing the multiple rebellions within the first two centuries of Islams rise). Other standard examples include Ibn Jarr al-abar (d. 310/923), Tarkh al-rusul wal-mulk, ed. Muammad Ab l-Fal Ibrhm ([Cairo]: Dr al-Marif, 1960-1977) (English translation: History of al-abar (Albany: State University of New York Press, 1989-2007) in 40 vols.; covering pre-Islamic history through the year 301-2/915); Masd (d. 345/956), Murj al-dhahab wamadin al-jawhar, ed. Ysuf Asad Dghir (Beirut: Dr al-Andalus, [1965-1966]) (Abbsid period); Ibn alJawz (d. 597/1200), al-Muntaam f tawrkh al-mulk wal-umam, ed. Muammad Abd al-Qdir A and Muaf Abd al-Qdir A (Beirut: Dr al-Fikr, 1992) (the Prophets biography through the Abbsid period). Masd has been understood to represent a subtle Sh critique of Abbsid rule. See Tarif Khalidi, Islamic Historiography: The Histories of Masd (Albany: State University of New York Press, 1975), 120-45; Ahmad M. H. Shboul, Al-Masd and His World: A Muslim Humanist and his Interest in Non-Muslims (London: Ithaca Press, 1979), 4. Cf. A. Azfar Moin, Partisan Dreams and Prophetic Visions: Sh Critique in Masds History of the Abbsids, Journal of the American Oriental Society 127, 4 (2007): 415-28 (cautioning against an outright Sh designation as that communitys theological views had not solidified by that time, but arguing that the work does contain a Sh critique).
31 30 29

For a vivid discussion of examples from the central Islamic lands in the 5th/11th through 7th/13th centuries, see Lange, Justice, Punishment (drawing heavily on instances presented in Ibn al-Jawzs 100

meted out on the basis of political threat or disfavor, just as absolution from punishment was doled out on the basis of political favor. In most sectors of Umayyad society, social hierarchy triumphed and quietism set in until the Abbsid revolution toppled the regime only to replace it with a near-identical but more diffuse political order brought to power on the strength of an Alid religious claim.32 The regimes had changed, but the basic set-up was similar: the elite were given preferential treatment and those with competing religious claims to leadership were treated harshly. * * *

Given the socio-political influence of the elite, it was perhaps inevitable that their claim on social privilege would find its way into the law. Juristspart of the elite, though largely separate from government33shaped marriage laws in ways that
Muntaam). For a list of Islamic punishments as distinguished from non-Islamic ones, see Peters, Crime and Punishment, 33-38, 44-68.
32

Marlow, Hierarchy, 90, 93-116 argues that as social hierarchy prevailed, quietism set in. Exceptions were some Khrijs and Zayds, whose theological doctrines required rebellion before settling down in later periods. See Madelung, Religious Trends, 54-76 (Khrij egalitarianism), 77-86 (Zayd doctrine); T. Lewicki, The Ibdites, 55-56, 62-64 (describing Khrij fanaticism and quietism or moderation, and the rapprochement of the latter group [which came to be known as Ibs] with the Umayyad caliph Abd al-Mlik). For further references on Zayd activist and quietist doctrines, see the sources cited above, note 28. This characterization is qualified in that quite a number of jurists worked closely with the government as judges and caliphal advisors, as recorded by Wak, Akhbr al-qut. Aside from the well-known example of Ab Ysuf and Hrn al-Rashd mentioned above, two prominent examples are Ibn Shubruma (d. 144/761), ibid., 512-17, 557-82, and Ibn Ab Layl (d. 148/765), ibid., 573-82, both of whom had close relations with the second Abbsid caliph Ab Jafar al-Manr (r. 136-158/754-775) and his nephew s b. Ms who governed in Kufa. For a discussion and further examples, see M. Qasim Zaman, Religion and Politics under the Early Abbsids: The Emergence of the Proto-Sunni Elite (Leiden: Brill, 1997), esp. 70-118 (describing close interactions between scholars and early Abbsid caliphal officials); idem, The Caliphs, the Ulam, and the Law: Defining the Role and Function of the Caliph in the Early Abbsid Period, Islamic Law and Society 4, 1 (1997), 1-36 (pointing out that the caliph had a certain measure of judicial authority to interpret or choose particular interpretations of the law during this early period); Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993), 134, 141-45, 156 (noting that Ab Ysuf sought to describe the caliphs discretionary powers in matters of financial and other spheres of administration). See also Nurit Tsafrir, The History of an Islamic School of Law: The Early Spread of anafism (Cambridge, Mass.: Islamic Legal Studies Program at Harvard Law School, 2004), 17ff and passim (discussing the role of state patronage in early Muslim societies in support of the juristic endeavors especially in Iraq toward the spread of the school later known as anafism). 101

33

facilitated maintaining the bloodlines and status hierarchies that formed the basis for political patronage and social privilege.34 Some later medieval scholars described separate tiers of society based on status and validated practices of viewing each, even under the law, with a differential eye.35 In essence, the Qurnic values of egalitarianism centering on preference by moral excellence became spiritual ideals reserved mostly for the next world. As for this world, preference in the ruling classes tended to run parallel to tribal affinities, societys elite members enjoying access to wealth, power, and prestige.36 All of this would have nontrivial effects on criminal law. C. Hierarchy and udd Laws A significant manifestation of the accommodations of status that resonated in the udd context was the prevalence of the aql overlook saying, calling on people to overlook the faults of the nobles.37 As historian Louise Marlow has pointed out, this was one of the many sayings that tended to reflect and reinforce the new status hierarchies. Ibn Qutayba uses it as proof of divine sanction for ethnic inequalities, and
34 The legal doctrine requiring equality in marriage partners for a valid marriage (most famously picked up by the anafs: kafa) included socio-genealogical status. For a treatment of how this statusreinforcing doctrine played out in the social history of the Ald community, see Teresa Bernheimer, A Social History of the Ald Family from the Eighth to Eleventh Century (unpublished D.Phil. dissertation, Oxford University, 2006), 60-63 (discussing this trend at work in the context of intermarriages between Alids and members of various Qurash clans).
35

See Marlow, Hierarchy, 7 (quoting Nir al-Dn al-ss (d. 672/1274) quadripartite model of social hierarchies to be observed in the law); ibid., 2-4 (arguing that the Qurn does not necessarily attempt to abolish social hierarchies in the present world however meaningless it insists they are for the next; also arguing that the Qurn can be understood to endorse existing forms of worldly inequality in Arab society, such as slavery, social superiority of men over women, and the idea of divine favor bestowed on some individuals or peoples over others). For a similar conclusion, see ibid., 174-75.

36 37

For citations to various versions of the adth in the major Sunn and Sh collections, see Chapter 1, notes 53-61 and accompanying text (aql al-kirm athartihim [ill f add min udd Allh]); see also Marlow, Hierarchy, 27-28, note 78. 102

ursh similarly uses it as divine endorsement for social hierarchies.38 The saying was so widespread and well known that it was considered, like other common sayings in the first two centuries, a matter of necessary cultural knowledge for the educated and religious elite.39 Marlow has argued that the aql saying emerged after a shift away from the Islamic egalitarian ideals, because it contrasts markedly from the Qurnic view of moral preference that seems to reflect the values of the earliest community.40 This claim is strengthened by the fact that the saying proliferated in the ijz.41 That area was home to the factions who had the most to gain from claiming elite status on the sides of both the political authorities and the opposition to them based on alternate claims of preference and leadership authority. That is, the ijz was initially home to both Umayyad clans and to Alids, each group proffering competing claims of preference, which they used to advance an oppositional political claim to leadership. That said, the aql saying and related aphorisms that emphasize hierarchy make no mention of the social conditions of the local economies or cultureneither the agrarian base in Iraq nor the merchant practices in the ijz. Instead, they were sayings easily used by classes of transient elite. The sayings then could well have reflected competition for social precedence in the garrison towns in Damascus and Iraq during

38 Marlow, Hierarchy, 16-17.

39 40 41

Ibid., 17. Ibid., 13-17. See Chapter 1, note 60 and accompanying text. 103

the later Umayyad and early Abbsid periods.42 At least, that is how those of noble stock in those places used them.43 We have already mentioned the interpretations of the likes of Ibn Qutayba, a prominent figure in government who actively encouraged different rules on the basis of elite status, using the aql saying. There are several cases where we find jurists using the udd maxim to benefit those of high status in a similar vein. One of them was recounted in Chapter 1, involving Ab Ysuf and the indiscretions of a young prince.44 The short version of the story is that Ab Ysuf used the maxim to avoid punishing the Abbsid caliph Hrn al-Rashds son for zin. In the story, Ab Ysuf concluded that the evidenceonly the caliphs knowledge of the actwas insufficient to impose the punishment, so he avoided it. Here was the udd maxim in action, used to benefit the elite. Ab Ysufs legal advice permitting udd avoidance garnered him a handsome monetary reward and helped elevate him to a position of prominence as chief q. In another episode, the prominent Cordoban jurist and traditionist Abd al-Malik b. abb (d. 238/853) reportedly invoked the maxim to save his brother Hrn from an accusation of blasphemy for questionable statements he had made.45 When it comes to udd laws that God has determined and made mandatory, the jurist stated that the
42 For a similar observation and quotations of hierarchical descriptions of Islamic society suited to a transient elite that holds commoners (mma) in disdain, see Marlow, Hierarchy, 36-40.
43 44

Ibid.

See Chapter 1, note 34 (citing multiple sources for this story: Tankh, Nishwr al-muara, 252-4 [for an English translation, see D.S. Margoliouth trans., The Table Talk of a Mesopotamian Judge (London: Royal Asiatic Society, 1922), 136-7]; Ibn Khallikn, Wafayt al-ayn, 6:381-2; Ibn al-Ward, Tarkh, 1:281 (reporting this event under the year 181 AH); Yfi, Mirt al-jinn, 1:383 [quoting Ibn Khallikn and reporting this event under the year 182 AH]). Khushan, Akhbr, 186-91. 104

45

Prophet commanded avoiding udd laws in cases of shubha (idra l-udd an ummat bi-l-shubaht), as did his Companions (idra l-udd an al-muslimn m wajadtum lahum [makhrajan]).46 In this case, Hrn b. abb (Abd al-Maliks brother) had made a statement denigrating the religious Muslims of his time in favor of Christians, whom he deemed more trustworthy. When two neighbors approached him to inquire whether he was of sound mind, he said I am fine, except that I have become so sick that even if I murdered Ab Bakr and Umar [the first two caliphs, ranked by later Sunn creed as most preferred in spiritual rank after the Prophet] ... I would not deserve this!47 The person who heard the first statement along with the two neighbors accused him of blasphemy, and sent a letter to the reigning caliph, Abd al-Ramn b. al-akam (Abd al-Ramn II), offering written testimony to that effect. Fortunately for Hrn, his brother Abd al-Malik was one of the jurists whom the caliph and judges called upon for advice on particularly difficult questions of law. The caliph wrote to ask the judge of Cordoba along with Ibn abb and his fellow expert jurists to investigate this matter concerning the blasphemy charge, whichif provedcarried a penalty of death. Ibn abb made three arguments to highlight the doubts and uncertainties surrounding the case, in an ultimately successful effort to save his brother Hrn from the death penalty. Two arguments evaluated the merits of the blasphemy charge and one concerned the evidence. On the merits, he argued that all his brother did in the first statement was to censure the Muslims of his time for what he perceived as
46 There is an ellipsis in the text; I have filled it with the text of the adth as recorded in the Sunn adth collections. See Chapter 1, Appendix (Version 2).
47

Khushan, Akhbr, 187. To preserve a sense of the original text, I have removed the honorific may God be pleased with them, which appears to be an interpolation that followed later common practices of including a blessing in any mention of the early Companions. 105

rampant corruption. This, the jurist argued, should not be a prosecutable offense because the sentiment actually falls in line with the prophetic prediction of increasingly corrupt societies across time (fasd al-zamn).48 The second statement was more problematic. Admittedly, Ibn abb said, his brothers words could be construed as either praiseworthy or ill-advised. Muslim ascetics have used such figures of speech, as when Uways al-Qaran al-Zhid told a disciple to stand before God in prayer as if he had just destroyed the heavens and the earthmeaning, in such a state of attention and repentance that he was truly aware of presenting himself to God as a humble and lowly creature. If his brother, in mentioning the murder of the illustrious Companion-caliphs, meant something of this kind, then the statement was praiseworthy. Yet it was no secret that this esoteric meaning was unlikely. People instead popularly used such figures of speech for emphasis to express in exaggerated terms the extent of their life hardships (li-shiddat al-karb). This second meaning is common to fools and ignoramuses who are merely complaining about what God has meted out to them. It is ill-advised, Ibn abb admitted, and thus can warrant some kind of disciplinary punishment (uqba), but it is not a case involving udd laws. That is, there is no legal rule prohibiting people from complaining of hardship; the Prophet discouraged it, but God certainly never legislated any add sanction against it. In fact, the Qurn relates stories of Jacob (who complained at losing Joseph) and Job (who complained of the hardship that he suffered for eighteen years) without any absolute condemnation. When God censured them for complaining, Jacob said that he had committed a sinnot a crimeand asked for
48 Ibid. 106

forgiveness; Job was never considered an apostate nor punished. To the contrary, he is held up as a paragon of patience! Read in this light, the jurist noted, Hrns statement was ill-advised, but it was not a criminal offense such that it warranted the add sanction for blasphemy. Finally, Ibn abb argued in the alternative that, even if Hrns statements rose to the level of criminal wrongdoing on the merits, any add punishment should be avoided because the accusation rested on insufficient evidentiary grounds. Islamic criminal procedure barred certain types of testimony in criminal legislation; among them was testimony that did not allow the witness to confront his accuser. Before imposing a punishment, the court must identify the witnesses who testified against the accused and give him the opportunity to defend himself.49 At bottom, Ibn abb concluded, his brother had committed no add crime. The udd maxim works to avert punishments of bad acts that God had specifically criminalized when their commission has not been proved beyond doubt; how much more so should the tendency to avoid punishment apply when dealing with unspecified crimes that are of doubtful criminality or culpability! With these arguments, featuring the udd maxim and cleverly highlighting areas of doubt, Ibn abb had saved his brother from the add punishment of death.50 In the account, Ibn abb insists that he would make the same arguments for anyone, and his arguments had nothing to do with the case involving his brother or, presumably, the high social rank of their family. But perhaps he doth protest too
49 Ibid., 190 (fa-law knat al-uqba tajib al Hrn wa-wajaba an yusamm lahu man shahida bih alayh wayubsi lah al-madfaa li-dhlik wa-yuwassiuh min al-adl m wasaa l-muslimn).
50 See ibid., 191. The brother received a lesser, discretionary punishment; he was imprisoned until the caliph died, after which his successor, Caliph Muammad, freed him.

107

much, because his jurisprudence in other contexts is revealing. Ibn abb seems to have generally been in favor of the death penalty, in his role as consultant (mushwar) to the judge of Cordoba.51 When he was asked about the blasphemy case of the nephew of the royal concubine Ajabsomeone of relatively high status but not related to him he was not so intent on avoiding the punishment. In this case, he made none of the arguments he advanced for his brother Hrn, though these proceedings arose just after the ones involving Hrn. To the contrary, Ibn abb was one of the jurists in favor of imposing the death penalty on Ajabs nephew with the result that the blasphemy charge stuck and the concubines nephew was executed.52 In an earlier blasphemy case in Iraq, the defendant had not been so fortunate as Hrn turned out to be, though the maxim was still at play in the legal arguments invoked in the case. During the time of the Abbsid caliph Mahd (r. 158-169/ 775-785), a Basran litterateur named li b. Abd al-Qudds (d. 167/783), was one of the poets accused of masked infidelity (zandaqa), that is, secretly holding non-Islamic theological beliefs. Upon hearing allegations that the poet had rejected the Prophet in some of his poetry, Mahd summoned him on charges of blasphemy. In one version of the story, li denied having authored the offending verses, swearing that he had never uttered any blasphemous statements: By God, I never joined others with God even for a blink of an eye. So [also] be mindful of God! Dont shed my blood on the basis of doubt (shubha), for the Prophet instructed us to avoid udd sanctions in cases of doubt or
51 For the full story, see Fierro, When Lawful Violence Meets Doubt, 230-31; eadem, La heterodoxia en alAndalus durante el periodo omeya (Madrid: Instituto Hispano-Arabe de Cultura, 1987), 63-70 and sources cited therein.
52

For this story, see Fierro, When Lawful Violence Meets Doubt, 230; see also eadem, La heterodoxia, 5763 and sources cited therein for a fuller account. 108

ambiguity. He then began reciting the Qurn until the caliph had a change of heart. The caliph was so impressed by the poets eloquence and wisdom that he commanded that li be set free (amara bi-takhliyat sablih). Just before the poet left, however, Mahd asked him to recite some poetry to him, and li readily obliged. He recited until he came to the following lines:
An old man does not abandon his ways Wal-shaykhu l yatruku akhlqah No sooner does he repent than he reverts to his folly Idh raw da il jahlih Until his body is buried in the earth att tawr f thar ramsih Like a sickly man who falls back to his weakness ka-dh l-ann da il nuksih 53

Taken aback, the caliph reversed his decision to accept the poets claims of innocence and perhaps rehabilitation. Mahd gathered from these lines that li would never give up on his blasphemous ways and decided to rule on his case harshly. li was executed and crucified above a bridge.54 This time, invocation of the udd maxim was not enough to spare his life. But the point is that the maxim was again recognized and invoked in the highest circles here with Mahd, as it had been under the governing authorities Hrn (the Abbsid caliph) and Abd al-Ramn II. lis citation of the
53 Of the versions recorded with slight variants (see below, note 55), I have drawn on the version in a critical edition of lis poetry contained in a monograph on his life and writings. See Abd Allh alKhab, li b. Abd al-Qudds al-Bar (Baghdad: Dr Manshrt al-Bar, 1967): 116-52 (Dwn li b. Abd al-Qudds), 143. NB: Araw is literally to abandon, but is rendered here as repent. For an alternate translation, see Fierro, When Lawful Violence Meets Doubt, 238 (An old man cannot change his ways until he is in the grave and when the old man abandons his mistakes, he does not fail to come back to them, like a convalescent who falls sick again.). See al-Khab al-Baghdd (d. 463/1071), Tarkh Baghdad, ed. Muaf Abd al-Qdir A (Beirut: Dr alKutub al-Ilmiyya, 1997), 9:303, no. 4844 (s.v. Ab l-Fal al-Bar [= li b. Abd al-Qudds]); Ibn Askir (d. 571/1176), Tarkh Madnat Dimashq (Beirut: Dr al-Fikr, 1995), 23:347-55, no. 2819 (s.v. Ab l-Fal alBar); Ibn Khallikn (d. 681/1282), Wafayt al-ayn, 2:492 (s.v. li b. Abd al-Qudds). For discussions in secondary sources, see Fierro, When Lawful Violence Meets Doubt, 238 (citing I. Goldziher, Slih b. Abd al-Kuddus und das Zindkthum whrend der Regierung des Chalifen al-Mahd, in Transactions of the Ninth International Congress of Orientalists (held in London, September 1892), ed. E. Delmar Morgan 2 (London: [Printed for the Committee of Congress], 1893): 104-29; Melhem Chokr, Zandaqa et zindiqs en Islam au second sicle de lHgire (Damascus: Institut Franais de Damas, 1993), 222-31; Josef van Ess, Theologie und Gesellschaft im 2. Und 3. Jahrhundert Hidschra: eine Geschichte des religiosen Denkens im Fruhen Islam (Berlin: Walter de Gruyter, 1991): 2:15-20). 109
54

maxim represented another instance of at least an attempt by a member of the elite to use the maxim to avoid punishment regardless of the merits of the case (or in fact where guilt was presupposed, as it had been with the caliph Hrns son and Hrn, brother of Ibn abb).55 * * *

These stories depict jurists as members of elite classes in the second and third centuries, citing but potentially abusing the udd maxim.56 They underscore the extent to which social stratification was a fact of life in early Islamic societies and show that officialsincluding some juristsreportedly used maxims like the aql saying and udd maxim to shape and exploit the law to justify preferential treatment, even in criminal law. To be sure, the anecdotal literary and biographical sources in which these stories appear no doubt record the most spectacular of such encounters, memorable for socio-political reasons or for the cunning on display; by definition and
55 Maribel Fierro recounts additional stories in When Lawful Violence Meets Doubt, 1-2, 229-30 (describing, in addition to these three cases, the following: (1) Andalusian Judge Ibn Ab s (d. 339/950) avoiding the add punishment for drinking according to a anaf rule disallowing punishment for a single confession (citing Bunnah [sic = Al b. Abd Allh al-Nubh], al-Marqaba al-uly, ed. and trans. Arsenio Cuellas Marqus (Granada: Universidad de Granada, 2005), 8991/22225); (2) Zrid vizier Simja avoiding the add punishment in a similar scenario (citing Ibn al-Khab, Kitb aml al-alm, ed. E. Lvi Provenal (Rabat, 1934), 268-69 [see Muammad b. Abd Allh b. al-Khab, Aml al-alm fman byia qabla l-itilm min mulk al-Islm wa-m yataallaq bi-dhlika min al-kalm, ed. Kasraw asan (Beirut: Dr al-Kutub al-Ilmiyya, 2003)], and E. Garca Gmez, Sobre la diferencia en el castigo de plebeyos y nobles, AlAndalus 36 (1971): 71-79, 73-74) [On the Zrids, see Andrew Handler, The Zrids of Granada (Coral Gables, Fl.: University of Miami Press, 1974), though use with caution.]; (3) Umayyad governor of Basra Khlid alQasr (d. 126/743) urging a high-status thief to avoid punishment through denying criminal wrongdoing which would provide the requisite doubt necessary to trigger the udd maxim) (citing Alf Layl wa-layla, night 298, and, Itld, Nawdir al-khulaf (Cairo, 1876) [see Muammad b. Diyb al-Itld, Nawdir al-khulaf al-musamm ilm al-ns bi-m waqaa lil- Barmika maa Ban l-Abbs, ed. Ayman Abd al-Jbir al-Buayr (Cairo: Dr al-fq al-Arabiyya, 1998), 57-61 (as related by Ama (= Ab Sad Abd al-Mlik al-Ama (d. 216/831))]). That the maxim was abused is a plausible interpretation with which Maribel Fierro regards these cases. Alternatively these jurists could have been using the maxim for its intended use. But even that could be characterized as abuse if indeed they were selective in their application of it to benefit their elite peers as opposed to applying the maxim broadly without status-discrimination and even to low-status members of society. 110
56

by style of Islamic historiography, they do not attempt to provide a representative or comprehensive sample of the course of events. Yet this sampling provides a window onto notions of relatively early features of Islamic law and society surrounding the elites encounters with or regard for criminal law and social status in the 1st/7th and 2nd/8th centuries. It stands in sharp contrast to the theory of criminal law offered in the works of adth and law from the same period. The bulk of the jurists outlined a different criminal law jurisprudence that actively opposed such orientations toward preferential treatment and arbitrary justice that they observed in the political context. Their rejection of hierarchy and arbitrariness in favor of Islams earliest egalitarian and other moral imperatives pushed them to develop a more measured criminal law that came to be characterized by what I call its jurisprudence of doubt.
III. Competing Cases: Imposition vs. Avoidance and Dealing with Doubt

With this background, I mean to suggest a fitting social and political context for understanding the competing tendencies in udd jurisprudence; by it, I aim to gain a fuller sense of where the udd maxim fits in the larger landscape of early Islamic law and society. The stories above come from historical sources that describe political events and some legal cases but are non-precedential.57 Turning to the precedential reports (adths) in the normative juristic sources, a look at the early cases reveals competing imperatives alternately for udd imposition and avoidance. By reviewing
57 In Islamic legal theory, only directives based on Islams foundational legal sources are binding, and even when they feature in legal cases and advisory opinions, somewhat like common law, they only form precedent gradually over time as they are repeated and absorbed into the normative texts and treatises of the jurists. For discussions, see generally Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihb al-Dn al-Qarf (New York; Leiden: Brill, 1996); Abou El Fadl, Rebellion and Violence. Cf. Baber Johansen, Legal Literature and the Problem of Change: The Case of Land Rent, in Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden et al.: Brill, 1999), 446-64. 111

them, I aim to show that they express some of the core concerns of the early community arising from background social and political developmentsnamely, opposition to the use of social position for unequal and arbitrary application of the law, attention to religious imperatives to adhere to divine commands, and what we may call the resulting moral anxieties of the jurists charged with defining or interpreting criminal law. Such anxieties about judging, particularly in areas of criminal law, were regular features of medieval religious communities. As the comparative legal historian James Whitman has argued, legal procedures in the premodern world were often designed to help relieve the judges own anxieties about the act of judging.58 Charged with deciding issues of guilt or innocence, English and European judges of that period often avoided entering verdicts altogether.59 Whitman demonstrates that the modern American reasonable doubt doctrine has roots in premodern Christian theology: the original concern was to protect the soul of the judges and jurors as a mechanism for avoiding blood punishments and death verdicts, even when the guilt of criminal wrongdoing was not necessarily at issue. In addition to the legal and physical consequences that sometimes obtained from demonstrably false verdicts,60 premodern
58 Whitman, Reasonable Doubt, 10. Ibid. (quoting historian James Fitzjames Stephen, A History of the Criminal Law of England (repr. London: Routledge, 1996) (orig. London: Macmillan, 1883), 1:573: [Premodern judges often dreaded] the responsibilitywhich to many men would appear intolerably heavy and painfulof deciding upon the guilt or innocence of a prisoner.). For a comparative description of legal and physical consequences in several pre-modern legal traditions, see ibid. ([M]edieval Islamic jurists, for example, held that judges who falsely convicted an accused person should suffer exactly the same punishment they had inflicted. In medieval Italy, judges were subject to civil and criminal liability for incorrect judgments. English jurors faced similar legal threats until 1670. On a grosser level, the physical well-being of a judge was sometimes threatened in the past, just as it is still occasionally threatened today, e.g., through clan vengeance or retaliation against judges.) (citing, inter alia, Baber Johansen, Vom Wort- zum Indizienbeweis: Die Anerkennung 112
60 59

jurists feared the spiritual consequences of unjust verdicts, particularly when dealing with capital punishment. The idea was that God Himself was the great avenger of justice.61 As a general proposition, according to anthropologists and historians of religion , anyone in the premodern world involved in the killing of another person subjected himself to the risk of bad luck, bad karma, bad fate, or some kind of vengeful divine retribution.62 As such, the major thrust of premodern sensibilities in the Christian world that led to doctrines of reasonable doubt and heightened standards of proof ranged from the need for factual proof to a concern with moral responsibility.63 The overarching impetus though was a moral anxiety inspired by a fear of the very personal spiritual consequences of judging unjustly. Similar anxieties, I argue, led Muslim jurists to react against social hierarchy and against disregarding the moral imperatives represented by udd laws. Though there was certainly overlap between juristic and political arenas, jurists who worked with the political authorities and took part in their schemes were a minority. Many who were nominated stubbornly preferred to remain separate from the political apparatus, and the sources are replete with instances of their recoil at being nominated to judge. Famously, Ab anfa was said to have endured torture for his refusals,64 and
des richterlichen Folter in islamischen Rechtsdoctrinen des 13. und 14. Jahrhunderts, Ius Commune 28 (2001): 11-12).
61

Ibid., 11 (quoting Adam Smith in Adam Smiths Moral and Political Philosophy, ed. Herbert W. Schneider (New York: Harper and Row, 1970), 192-93, 198-99 ). Ibid. Ibid., 165.

62 63 64

For a discussion of this and his extreme antipathy toward the ruling authorities and censure of judges like his rival Ibn Ab Layl who colluded with them, see Muammad Ab Zahra, Ab anfa: aytuh waaruh, ruh wa-fiqhuh, 2nd ed. ([Beirut]: Dr al-Fikr al-Arab, [1965?]), 37-48, esp. 47. See also Hiroyuki Yanagihashi, art. Ab anfa, EI3 (Leiden: Brill Online, 2009) (presenting the theory of Schacht and van Ess that Ab anfa was tortured for refusing the judgeship a second time because of remarks made 113

the main source for the early history of judges opens with prophetic cautions against judging.65 This animus against judging has been seen as an unwillingness on the part of many jurists to collude with a corrupt government apparatus; it was part and parcel of their moral anxieties surrounding judging in accordance with Gods law. Their rulings were also a protection against encroachments of the political authorities on their own jurisdiction, inasmuch as they took themselves to be more able exponents of Gods law. These concerns resulted in a certain insistence on udd imposition in many instances, and udd avoidance in others, as revealed through myriad cases circulating amongst the jurists during these first three centuries, attributed to the Prophet and other early authorities as judges in criminal cases. The aim here is to illustrate the tendency of anxiety-ridden udd enforcement by providing a few landmark cases from the first three centuries, in that they are discussed often by subsequent jurists as central bases for their criminal opinions.66

against the Abbsid caliph Manr during the Ald revolt in 145/762 headed by Nafs al-Zakiyya and his brother Ibrhm) (see Joseph Schacht, art. Ab anfa, EI2, 1:123).
65

See Wak, Akhbr al-qut, 19-61 (the first chapter preceding biographical reports on judges, beginning with the [section] mentioning [adth and other] reports announcing the gravity of assuming a judicial post over people and that whoever assumes [such a post] has been slaughtered without a knife: dhikr m ja f l-tashdd f-man waliya l-qa bayn al-ns wa-anna man waliyah fa-qad dhubia bi-ghayr sikkn).

66 This is admittedly a subjective determination; however, the selection of cases, particularly contained in Sunn adth literature, is based on an analysis of the usage of jurists in fiqh works from this period (e.g., treatises by Shfi, Mlik, Ab Ysuf, and Shaybn), fiqh work after the 3rd/9th century, and fiqh, fatw, and qawid works from the 5th/11th through 9th/14th Mamlk and Andalusian periods, as discussed in the next three chapters. Additionally, a comparison of the selected cases here with the full range of cases and rulings contained in 2nd/8th and 3rd/9th adth collections, including many reports dating from the 1st/7th century (as per Motzki), shows that these cases offer a useful cross-sampling of the full range as it relates to the major issues involved in the jurisprudence surrounding criminal law. In other words, while the adth works cover more subject areas (e.g., the definitions of crimes, evidentiary standards, and when add sanctions are due; how to implement the add sanction; further exhortations to mercy, forgiveness, repentancesome as discussed in the next chapter) this sampling is generally representative of the types (if not frequency) of the issues that arise in adth works as it relates to interpretive moves and maxims in udd jurisprudence.

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The usual disclaimer applies when dealing with sources that are not contemporaneous with the events that they describe. Although the cases presented here purport to detail events from the Prophets time and immediately after, reports of them are available in written literature only from the late Umayyad and early Abbsid periods, at the earliest, and they do not purport to be transcripts of actual criminal proceedings. Rather than taking them as verbatim representations of what actually happened then, we can understand them to indicate the ideas that the later generations of scholars came to associate with Islams earliest period. We can also take them to represent the arguments that resonated in juristic circles as normative.67 This is not to suggest that these texts are entirely fictional, but rather that, as with all historiography, they are interpretations that partly reveal the historical circumstances and values of the community recounting them.68
67 I take my cue from Roy Mottahedeh, who noticed the high regard that one medieval Near Eastern society accorded to oaths through observing their portrayal in anecdotal, legal, and historical-political literature. The point there was not whether the anecdotes told involving oath-taking were historical, but that they clearly signified a premium on not violating oaths as they attributed negative consequences for social cohesion and political loyalties when they were. To take just one example, the anecdotes about political leaders and notables taking personal oaths of obligation suggest not that they aimed to bind their followers but that they could secure the compliance of their followers through existing loyalties; likewise, a certain type of oath of fealty to the leader (baya) was essential for political loyalty and the (juristic or social) sanctions for breaking it were the only device for ensuring loyalty when all other sanctions belonged to the established government. In a similar vein, numerous other social and intellectual historians have looked to the traditions to make observations about social conventions and normative arguments that carried weight in pre-modern societies that preserved them. See Mottahedeh, Loyalty and Leadership, 53, 61 and passim; cf. also Marlow, Hierarchy, 13 (adopting a similar approach in the context of maxims). This approach is not directly concerned with questions of origins, authenticity, or historical accuracy; but it is meant to complement investigations of the sourcesas in Chapter 1that seek to closely evaluate and comment on the provenance and circulation of certain reports or intellectual schools extracted from the earliest available written sources that point to or verify yet earlier trends. Excellent examples of this latter approach include Harald Motzki, Die Anfnge/Origins; and Rudolph Peters, Murder in Khaybar: Some Thoughts on the Origins of the Qasma Procedure in Islamic Law, Islamic Law and Society (Evidence in Islamic Law) 9, 2 (2002): 132-67.
68 For discussions of Islamic historiographical literature, see, e.g., Stephen Humphreys, Islamic History: A Framework for Inquiry, rev. ed. (Princeton: Princeton University Press, 1991; 1st ed. 1983), esp. Chapter 3 (describing the character of early Islamic historiography and surveying major approaches to the field in contemporary scholarship); Fred M. Donner, Narratives of Islamic Origins: The Beginnings of Islamic Historical Writing (Princeton: Darwin Press, 1998), esp. 1-31 (Introduction: surveying approaches to Islamic history

115

This exercise is useful for our purposes of identifying the societal values and moral anxieties at play in early Islamic legal history, interested as we are in the juristic ideals of that time. As one scholar aptly put it, just as looking at how men and women dress and act when they are trying to look their best tells us something important about ideals of beauty, so looking at legal doctrine when judges pretty it up for public display tells us something important about ideals of justice. [Legal opinions] embody the aspirations of legal institutions, showing us what judges do when they want to get things right for a special occasion. If the question one is asking is what ideals the law embodies, then one should look at those settings most likely to provide the ideal point of view.69 Even more than do legal opinions in the common law context in which that scholar spoke, legal maxims do this work of providing the ideal point of view in Islamic law. They express the essence of accepted Islamic legal opinions that have settled as normative for legal pedagogy and practice, which is why they are of such central concern here. As do general maxims of the early Islamic period, the cases recorded in the juristic literature of that period reveal that a number of different social ideals were in competition in the early second century, and that the exponents of each were eager to claim the authority of the past.70 Some reflect the sentiments of egalitarianism and judicial subservience and appear in terms of a call to strictly impose udd laws. Others
and historiography in contemporary scholarship and critiquing the radically skeptical approach in favor of one that looks to the Islamic sources as presenting a kernel of historical truth); Tayeb El-Hibri, Reinterpreting Islamic Historiography: Hrn al-Rashd and the Narrative of the Abbsid Caliphate (Cambridge: Cambridge University Press, 1999) (arguing that early Arab history-writing should be viewed not as a register of facts but of moralizing); Chase Robinson, Islamic Historiography (Cambridge: Cambridge University Press, 2003) (that patronized history-writing aimed at presenting facts in support of legitimating the sponsoring regime or to give answers that belief required, with the notion that Muslim and Christian historians of the time usually aimed to teach and inspire by illumination and exemplification, though their records could coincide with fact).
69

Kim Lane Scheppele, Legal Secrets: Equality and Efficiency in the Common Law (Chicago: University of Chicago Press, 1988), 316-17. Marlow, Hierarchy, 13. 116

70

reflect a deeper moral anxiety about imposing the harshest of sanctionsthe death penalty, and this materializes in measures of udd avoidance altogether. And still others reveal what came to be a compromise revealing attempts to strike a balance between the two tendencies in light of the police power of the state and the moral anxieties of the jurists. These cases, I will argue, demarcate an area of public morality over which political jurisdiction and udd enforcement may be warranted and shelter an area of private action where concealment and avoidance are key. It is through these cases that jurists negotiate competing values. In what follows, I present these competing tendencies in criminal law jurisprudence by focusing on cases that are of recurring importance in the later legal literature;71 throughout, I argue that they should be read against the backdrop of an increasingly stratified social context (in terms of socio-political status) that challenged the ideals of the earliest community to which the scholarly community recounting these cases aimed to hearken back. A. udd Imposition: Egalitarianism and Judicial Subservience 1. Religious Egalitarianism: The Case of the Makhzm Thief The most important episode illustrating the jurists fixation on Islams egalitarian ideals is the Case of the Makhzm Thief. The reports depict a woman who, during the Prophets lifetime, used to borrow goods and then deny that she had done so. This amounted to theft, for which she was eligible for the add punishment of handamputation. This woman belonged to the prominent Makhzm clan within the Prophets tribe of Quraysh. Accordingly, leading members were preoccupied with the

71 See above, note 66. 117

matter.72 They designated one Makhzm clansman, Usma b. Zayd, to go speak to the Prophet on the womans behalf in an attempt to avert the requisite sanction. In their estimation, Usma had the greatest chance of success given his relationship to the Prophet: he was the son of the Prophets own adopted son. But the Prophet responds quite unfavorably: Usma, are you interfering on a matter involving one of the udd laws of God?! and orders the sentence to be carried out. He then stood and addressed the people publically, in rebuke and admonition: Surely, those who came before you were destroyed because [it was their practice that], when a person of high class (or a noble, sharf) stole, they would let him go; but when a commoner (af) stole, they would impose the add punishment on him. I swear by God that if [my own daughter] Fima bt. Muammad stole, I would cut off her hand.73 In so saying, the Prophet prohibits in no uncertain terms disparities in udd enforcement based on social status or familial relations. The allusion to Fima is significant for reasons beyond the obvious familial connection and caution against nepotism on that basis. Her mention brought into play the deep religious and cultural valence that Fima enjoyed rather uniquely in Muslim societies across time and space. At the time the adth scholars and jurists recorded this case in the eighth and ninth centuries and after, Fima had long been recognized as the single most-revered
72 On the stature of the Makhzm clan within the Qurash tribe, see Zubayr b. Bakkr, Jamharat nasab Quraysh, ed. Mamd Muammad Shkir (Cairo: Maktabat Dr al-Urba, 1381/[1962]), 284; Ab Abd Allh al-Zubayr, Nasab Quraysh, ed. E. Lvy-Provenal (Cairo: Dr al-Marif lil-iba wal-Nashr, 1953), 247; Jamharat ansb al-Arab (1962), 124. See also Martin Hinds, art. Makhzm, Ban, EI2, 6:137; Bernheimer, Social History of the Ald Family, 60-63 (noting intermarriages between Alids and Makhzms as indicants of marital suitability for those of the same social-genealogical status, as necessitated by the principle of equality in marriage, kafa).
73

Ab Dwd , Sunan, 4:133, no. 4373 (that she had stolen in the narration by al-Layth b. Sad); no. 4374 (that she used to borrow goods without returning them in the narration by Mamar, or that she stole a qafa from the Prophets house in the narration by Masd b. al-Aswad); see also Bukhr, a, no. 6887 (in bb iqmat al-udd al l-sharf wal-wa; Muslim, a, no. 1688; Nas, Sunan, 4:330; Bayhaq, Sunan, no. 17,004 (citing Bukhr and Muslim, and noting that they recorded the version of al-Layth b. Sad). 118

woman in Islamic history amongst Sunns and Sha alike, for reasons centered on but also going beyond her familial tie to the Prophet.74 Imagining even Fima as addeligible then was the most emphatic declaration possible to signal that udd laws were to be enforced in an egalitarian manner, regardless of social status. In the context of Umayyad and Abbsid excesses, the jurists reporting these cases were signaling their strong opposition to the growing influence of status hierarchies in applications of the law. 2. Judicial Subservience: afwns Case and The Case of the Drunken Orphan Other cases, where issues of status are not immediately apparent, speak to jurists more general concern with the Qurnic imperative to obey the divine law. A famous incident involves the early convert afwn b. Umayya, who stayed in Mecca after most Muslims had migrated to Medina years after the Prophet began preaching the message of Islam. The emigrants made known their attitude that those who remained in Mecca were wrong to do so, and the continuing negative sentiment is said to have eventually prompted afwn to join them some two hundred miles to the north. On his way, he stopped to rest in a mosque, napping with his head on his cloak. He awoke only to discover that a man had come and stolen his cloak. afwn pursued the thief immediately and, having captured him, dragged him to the Prophet for criminal prosecution. The Prophet ruled that the man was to have his hand cut off, in
74 See Denise L. Soufi, The Image of Fatima in Classical Muslim Thought (unpublished PhD Dissertation, Princeton University, 1997) (describing universal regard for and veneration of Fima as a model of the perfect woman in terms of societal roles, intellectual competence, and piety). Moreover, she was the progenitor of the Ald line of descent, which has been called the peerless aristocracy of Islam, more elite even than those distinguished as relatives of the Prophet otherwise (sharfs). See Bernheimer, Social History of the Ald Family, 161-65 (noting that boundaries were maintained early on through marriage as recorded in genealogies, both of which were fiercely maintained in the early period and throughout Abbsid rule). 119

accord with the Qurnic add punishment for theft. At this, afwn balked: I never intended this [outcome]! he exclaimed. I hereby gift him the cloak. The Prophet responded, if only you had done so before you came to me! In one version of the story, the Prophet ordered that the add punishment be imposed, rejecting afwns belated attempt to avert it.75 Jurists typically cite this case for the proposition that the matter had already been adjudicated, and it was the Prophets dutyas the political and judicial authority charged with implementing the divine lawto impose the punishment in deference to divine legislative sovereignty.76 Here is an instance of jurists showing that political and judicial authorities alike are accountable and subordinate to the dictates of the divine law. Legal process was key. If even the Prophet could not avoid applying sanctions once the process revealed that an offender had clearly violated the law, no one could. If afwns actions are taken at face value, the anecdote reflects a juristic ideal of lenience. By placing afwn at the center, the jurists were depicting the elite and wealthy member of the leading Umayyad clan as trying once again to subvert the law through intervening in a criminal proceeding as if his word could take precedence over the law. Apparently, Muslims regarded afwn with some degree of suspicion; he was
75 Shfi, Umm (1961), 131 (hall qabla an tatn bih); cf. Abd al-Razzq (d. 211/826), Muannaf, 10:229, no. 18938 (O Messenger of God, would you [still] cut off [this mans] hand for my cloak that I now gift to him?). There are many versions of this story, each with slight variations. This variant says the cloak was stolen from under his head; another has it that he left it atop his waiting camel outside. For the latter, see, Abd al-Razzq, Muannaf, 10:229, no. 18,938; see also Nas, Sunan, 4:4330, no. 7371 (similar to Abd al-Razzqs version). But this version is problematic as a model case, because the thief would not have taken the cloak from a secure location, which is a key condition for the application of the add punishment as against a more lenient discretionary punishment. Perhaps for this reason, the later legal sources tended to pick up the version listed above in the text. For a collection of versions, see Bayhaq, Sunan, 8:287, nos. 17,002-03.
76

A minoritywho take this case as a precedent for udd avoidancedeny that the Prophet imposed the add. See, e.g., Qudr, Tajrd, 11:5986-87. 120

one of the Prophets greatest opponents before his conversion, and the sources depict him as belatedly joining the community in Medina.77 Yet these dubious distinctions make it reasonable to take this report at face value for the egalitarian ideal that the jurists wanted to promote. Even afwn was shocked and regretted his pursuit of justice immediately when he learned of the harsh consequences. His was a moral anxiety that appeared more typically in the persons of the Prophet or Al when it involved death; precisely because of his otherwise dubious regard in the sources, the episode may have meant to portray his ignorance or genuinebut belateddegree of compassion. A case more directly emphasizing the moral imperative to obey the law is reported to have occurred some years later in the Case of the Drunken Orphan. This incident concerned a man who brought his nephew to the famous Companion of the Prophet, Ibn Masd (d. 32/652-3), while he was presiding as Kfas first governorjudge.78 The uncle asked Ibn Masd to punish the young man for drunkenness. The nephew protested on the grounds that the uncle was derelict in his duties as a guardian: You neither disciplined me [to thereby teach me right from wrong] nor
77 afwn was a prominent merchant before Islm, who is said on some accounts to have opposed the Muslims at Badr and then tried to escape to Syria with a caravan containing a considerable amount of silver that he owned. See Patricia Crone, Meccan Trade and the Rise of Islam (Princeton: Princeton University Press, 1987), 87; see also Kennedy, Age of the Caliphates, 43 (grouping afwn b. Umayya amongst the die-hard leaders of Mecca who resisted the Prophets overtures to reconciliation until the Prophets eventual conquest of Mecca, only after which he returned, reconciled, and eventually converted). On the negative portrayal of afwn in the historical literature suggesting doubts about his level of commitment to the Muslim community, see Boaz Shoshan, The Poetics of Islamic Historiography (Leiden; Boston: Brill, 2004), 60 (arguing that abar makes afwn appear to be a fool by depicting him to have incorrectly predicted the Prophets demise after the battle of Badr). This would have occurred during the reign of Umar or the first part of Uthmns reign, before the complaints of his nepotism had begun. There is some dispute about when Ibn Masd assumed the judgeship in Kufa or even who was the first; regardless, he appears to have been the first judge with any lasting effect. He was a prominent Companion and the only one from whom the sources preserve adth narrations and judicial decisions, which were often relied upon by his successors. For reports of these decisions, see Wak, Akhbr, 354-55. 121
78

covered my sin, he complained. Here, he was alluding to a general sentiment against revealing indiscretions publicly, as elaborated below, which applied across-the-board, over and above the concealment and special preferences that the aql saying advised for the elite. Here, we can assume that those recording Ibn Masds decision meant to emphasize the more general tendency, as the adth source reporting this case does not mention the aql saying and as it leaves the identitiesand thus social statusof the parties unknown. In his deliberations, Ibn Masd referred to instances when the Prophet had applied udd punishments against anyone who violated the law, even though it pained him deeply. When he faced the very first case of theft, Ibn Masd said, the Prophet grimly accepted that his personal qualms about the severity of the sanction could not stop [him] from [imposing it].79 Drawing on this precedent, Ibn Masd is said to have reluctantly, but decidedly, imposed the add punishment. It pained him too, he said, to sentence the young man; he did so nonetheless because the guilt was not contested. True, God is (quick to) pardon and loves pardon, Ibn Masd quoted, but whenever an authority (wal al-amr) is brought a add violation, he must impose the designated punishment. 80

79 Al-kim al-Naysbr, Mustadrak, 4:24 (Ab MjidaYay b. al-JbirShubaMuammad b. Jafar His father [Amad b. anbal]Abd Allh b. Amad b. anbal ).
80

Bayhaq, Sunan, 8:331, no. 17,391. This is similar to a story related about Abd al-Ramn, son of Umar, whom his brother dragged to court in Egypt for drunkenness. There, the governor-judge, Amr b. al- imposed the add secretly, and when Umar heard about it, he imposed it again publicly in Medina. It could be that he doubted whether Amr ever imposed the punishment as no one witnessed it and could testify to it; alternatively, he may have insisted on public punishment for the same reason cited above that mere compassion could not warrant any departure from proper udd enforcement. See Ibn Taymiyya, Majm al-fatw, 14:287 (citing the tradition in the course of his commentary on Qurn, 24:2 (wa-l takhudhkum bi-him rafa)). 122

As with the other cases, the report emphasizes the duty to obey the law by imposing udd punishments once the crime is established. No intervention, personal qualms against severity, or baseless pleas for lenience were to be entertained. Thus, Usmas attempt to intervene on behalf of his fellow clanswoman failed; afwn was unable to counter the Prophets religiously based moral authority with his own belated attempt to change the legal facts by gifting his stolen cloak to the thief after sentencing; and the orphans attempts to avoid punishment in the face of admitted guilt were ineffective.81 Despite the attempts to avoid them, udd punishments were applied in all cases.82 3. Moral Anxiety: Jurists as Opposition to Status-Reinforcing Undercriminalization The jurists interest in recounting these cases was two-fold. First, no doubt, the decisions provided support for the notion that socio-political status could not absolve
81 That is not to say that such attempts would necessarily or indeed always did fail. In fact, after the early period, any change of legal facts tended to suffice for udd avoidanceat the trial stage, after sentencing, and even in the midst of carrying out the sentence. For instance, the Mlik jurist Wanshars reports a case from 8th/14th century Andalusia where the judge, al-ughayyir, maintained that post hoc changes to legal facts sufficed to create add-averting uncertainty, as when someone confesses to adultery then subsequently denies it. Wanshars, Miyr, 4:494. For a discussion, see David S. Powers, Law, Society, and Culture in the Maghrib, 1300-1500 (Cambridge; New York: Cambridge University Press, 2002), 62-63.
82

There is another series of cases reported from Yemen, which the sources portray as either being slow to receive details of the laws or highlighting a notion that those laws had not yet been set. In one case, the guilt was not contested, but the punishment itself was, at a time where it was not settled that stoning was the appropriate punishment for adultery, or if it was, those in Yemen did not know of it. In that case, which receives considerable attention in later juristic literature, an early convert from Yemen came to the Prophet asking him to judge between him and a man who accused his son of committing zin with his (the accusers) wife. The father explained his sons case, not contesting the guilt, but the sentence: My son is this mans servant (asf) and committed zin with his wife. I ransomed my son with a hundred sheep and a slave-girl of mine. But when I then asked the more knowledgeable people [about the matter], they informed me that my son was to receive a hundred lashes and be exiled for a year and that this mans wife should be stoned. The Prophet reluctantly responded that the latter opinion was correct, ruling that the husband was to return the sheep and servant and the son was to be flogged 100 lashes and exiled for a year. He then instructed Unays to go to the accused wife, and if she confessed, to stone her. Bukhr, a, no. 6440. The point of this story is to provide evidence that stoning was a bona fide Islamic rule. It also fits with the idea that where the facts are established and guilt is not at issue, udd imposition is mandatory. 123

criminal culpability. This they could use against the Umayyads who typically skirted the law or attempted to intervene in judicial affairs on that basis. These cases showed that the Prophet himself and recognized leaders of the community were concerned with obedience to the law; political and judicial authority alike were legitimate only so long as both followed Gods law with attention to the egalitarian and other moral imperatives that the Prophet had enunciated. Second, the examples would have also served to temper caliphal assertions of absolute control over criminal law by protecting the juristic sphere of authority on moral-religious grounds. The jurists duty, they could argue from these precedents, was to impose the law according to the facts of the case. Claims that they were barred from considering external matters would have been helpful in alleviating the enormous pressure from high-status offenders and interceding members of the socio-political elite, as we saw above, who tried to persuade judges time and again to avoid punishments based on non-legal considerations. If jurists were casting about for an argument that their hands were constrained by the dictates of the law, these cases provided it, andcounter-intuitivelythereby expanded their jurisdiction over penal law. By keeping the memories of the egalitarian and moral ideals alive with such stories in criminal law, jurists could present themselves as the agents best-equipped morally and intellectually to define Islamic law and its accompanying moral imperatives. On that basis, they could successfully insist that the political authorities had religious legitimacy only so long as they supported the jurists in recognition of that moral-epistemic authority to define the law.83 Significantly, the jurists arguments
83 On the epistemological basis for juristic authority in Islamic law, see Wael Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University Press, 2001); cf. Aron Zysow, The Economy of 124

resonated with the political and spiritual sensibilities of enough factions that they were ultimately successful in their claim to authority.84 This portrayal of juristic authority in epistemic-moral terms against the state is nothing new. It is a restatement of the settled scholarly view of early Islamic political and legal theory that proto-jurists formed in pious opposition to political excesses of the Umayyads and their successors. As one scholar recently put it, The pious opposition to the Umayyads not only shrank the caliphs authority to promulgate legal rulings, it also created a number of circles in which a more intense discussion of religious matters took place, and their members were the forerunners of the ulema, the specialists in religious learning so prominent in the later Islamic Middle East. The distance between the pious opposition and government also accounts for the development of the independent fatw or opinion . Conscientious Muslims went to the legally minded among the forerunners of the ulema and got opinions. Although later dynasties often appointed muftis, many muftis sought to remain and succeeded in remaining largely independent because people were free to choose their authorities and because a mufti who kept his distance from the government gained prestige among ordinary Muslims. The independence of the mufti was a significant part of the formation and persistence of a semi-independent community of jurists.85 These views are employed here to describe just how the jurists as oppositional agents to the state functioned in the criminal law context. Jurists drew on early precedents requiring strict enforcement of udd sanctions on an egalitarian basis on the one hand, and on the other as a means of expressing subservience to an authority that trumped even political leadership: the divine Law to which jurists had epistemological access. It bears repeating that the point is not whether the events
Certainty: An Introduction to the Typology of Islamic Legal Theory (unpublished PhD dissertation, Harvard University, 1984), 1 (From a very early period Muslims came to treat the question of legitimacy along explicitly epistemological lines. Certainty and probability were the fundamental categories with which they approached every question of law. This concern with epistemology sets Islamic law apart from other legal systems that treat the problem of legitimacy in institutional terms.). This led to an uneasy balance with the government over law as well as more intense discussions in legal-religious circles about what the law was. See Roy P. Mottahedeh, Lessons in Islamic Jurisprudence (Oxford: Oneworld, 2003), 6-8.
85 84

Ibid., 7-8. 125

actually took place, but that the jurists invoked these cases as precedent in their moral oppositional project. This fact signifies the concerns they held closest to heart and that these were the arguments deemed salient and necessary if not always conducive to change. The more the politics of power drove political authorities to disregard Islams early moral imperatives, the more concerned the scholarly classes became with insisting on those imperatives. Thus, while they reportedly acknowledged some instances where udd liability may be removed, they determined that it is improper for the Imm to neglect them [altogether].86 As later theorists would frame it, subservience to divine law was both the raison detre for political authority and its legitimating factor. These cases reflect juristic attempts to grapple with what they took to be the dictates of the law, and in the process, to define their own moral authority against that of the political elitepackaged as mere subservience to divine law. B. udd Avoidance: Fairness & Moral Anxiety 1. Death is Different: The Case of Miz and Stoning for Adultery Jurists did not always emphasize the mandatoriness of imposing udd sanctions. To the contrary, a rash of reports details instances where the Prophet and his Companions or family members advised udd avoidance rather than udd imposition. That is, jurists expressed a certain amount of trepidation in imposing harsh sanctions, as the following cases show.
86 Bayhaq, Sunan, 8:414, no. 17,060 (Avoid udd [punishments], though it is improper for the Imm to suspend them [completely]: Idra l-udd wa-l yanbagh lil-imm an yuail al-udd.). Notably, this adthattributed to the Prophet via Alcomes from a 5th/11th century source that appears to have reconciled the two traditions of udd imposition and avoidance, as discussed below. For a similar adth attributed to Umar from an earlier period, see Ibn Ab Shayba, Muannaf, 9:359, no. 28,963 (la-an uail aludd bil-shubaht aabb ilayya min [an] uqmah f l-shubaht.). 126

The most oft-cited example here is the infamous case of Miz b. Mlik.87 This man reportedly came to the Prophet, confessing to having committed adultery. The Prophet sent him away, declining comment. Miz came back a second time and then a third, each time renewing his confession and requesting whatever punishment was due. Each time, the Prophet sent him away. The fourth time, the Prophet asked some of Mizs townsmen about whether the man was of sound mind (fa-saala anh qawmah hal tunkirna min aqlih shayan), to which they replied that he was. On some accounts, the Prophet also suggested to Miz that he had not really committed zin but perhaps instead had merely kissed or winked or looked at the woman.88 Finally, after Miz insisted repeatedly that he actually had sex, was of sound mind, and was requesting punishment, the Prophet reportedly sentenced him to death-by-stoning. When the people began to carry out the sentence (for it was a community affair), Miz attempted to flee, but they pursued him to complete the deed. The Prophet, who apparently was not present, was later informed and cried out in dismay, if only you would have left him to perhaps repent so that God would accept his repentance (fa-hall taraktumh laallah yatb fa-yatb Allh alayh)!89 The people immediately regretted what they now
87 E.g., Ab Ysuf, Ikhtilf Ab anfa wa-Ibn Ab Layl, ed. Ab l-Waf al-Afghn (Hyderabad: Mabaat alWaf, 1357/[1938-9]), 156-57 (reading the case to mean that the punishment should have been avoided, with Mizs attempted escape interpreted as a retraction of his confession). Not all jurists understand the case in this way, as we will see, particularly as the add sanction reportedly was in fact imposed in this case. Reports about the case are contained in all the major adth collections. See Mward, w, 1:206-07, note 1 (listing sources, including Abd al-Razzq (d. 211/826), Amad b. anbal (d. 241/855), Drim (d. 255/869), Ab Dwd (d. 275/889), Tirmidh (d. 279/892), Ibn Mjah (d. 303/915), Ibn alMundhir (d. 319/930), aw (d. 321/933), abarn (d. 360/970), al-kim al-Naysbr (d. 405/1015-6), Bayhaq (d. 458/1066), et al.).
88

Bukhr, a, no. 6438. The sources are replete with similar stories of individual confessions and add avoidance, e.g., ibid., no. 6437 (reporting that a man came to the Prophet confessing to having committed a add crime multiple times, until the Prophet responded that he had just prayed with themindicating his repentanceso God had forgiven him), no. 6430 (relating the story of Miz without naming him). See, e.g., Ibn Ab Shayba, Muannaf. 127

89

understood to have been a grave error. The Prophet ordered them to handle Mizs body as they would any fellow community membershrouding him and performing the funeral prayer over him. Later jurists cite the Case of Miz for multiple points of criminal law.90 Among them is that the case represents a precedent for and mechanisms to avoid imposing criminal sanctions. For example, some jurists understand the case to require judges to question offenders for possible deficiencies that would remove add liability, just as the Prophet asked whether Miz was of sound mind before ruling.91 Others add that the add is to be avoided (yudra anh al-add ) whenever the accused retracts his or her confession or repents.92 The implication is that Mizs attempted escape was either the functional equivalent of a retracted confession or suggested that he would have repented had he been let go, which either way should have put a stop to the stoning.93 Thus, even though the report records that Miz was stoned to death, jurists nevertheless use it as a basis for their position that the death penalty is to be avoided when a matter is first brought before the courts and even once the execution of the
90 It is chiefly viewed as one of the few instances supporting the claim that stoning is indeed the divinely legislated punishment for adultery, given that the sanction does not appear in the Qurn and was the subject of some dispute in the early community, traces of which appear scantily and are rejected as significant objectionsas in Khrij objections to the punishment. See, e.g., Ja, Akm, 2:108, 3:26364. The report is also cited for guidance on the number of confessions due for udd liability, whether a defendants expressions of repentance in add crimes suffice to cancel add liability as they do for irba, who is authorized to carry out the punishment, whether the Imm or head of state must be present in such cases, etc. See, e.g., Shfi, Umm, ed. Amad Badr al-Dn assn (n.p.: Dr Qutayba, 1996), 7:498 (that zin liability requires only a single confession, that liability is not removed with repentance, and that he knows of no case where the Imm was present for the execution of the sentence: wa-m alimtu imman aara rajma marjm); Qudr, Tajrd, 11:5949-50 (that liability is not removed with repentance and that four confessions are necessary).
91

See, e.g., Ibn Ab al-Izz, al-Tanbh al mushkilt al-Hidya, edited by comparison to Kitb al-Inya by Bbart (d. 786), on the margins of Marghnn, Hidya, 4:128.

92

See Ab Ysuf, Ikhtilf, 156-57 (noting that he and Ab anfa share this view, but that Ibn Ab Layl held the opposite viewthat the add applies with confessions, which cannot be retracted). Ibid. 128

93

sentence has started. (Later, they use this same case and the same reasoning to apply to other non-capital udd punishments.) Strikingly, issues of individual guilt or innocence seemed not really to be at issue in the above cases; the accused or confessor may well have violated the law. Rather, in avoiding punishment even where there was some wrongdoing jurists exhibited a discomfort with imposing the ultimate penalty of death. This moral discomfort sparked tendencies to find excuses not to impose the sanction, in part, relegating the issue of guilt to a private concern between individual and God. A second report comes from Yemen, a generation after Miz. There, society was still as open as it was in pre-Islamic times, that is, with little sense of privacy in the domestic sphere. Yet locals had to work out the new challenges of urbanization that brought strangers rather than extended family members into the close proximity of their homes.94 An illustration is a case brought to Ab Ms al-Ashar while he served as a judge in his native Yemen, wherein a man apparently accused a pregnant woman of having committing zin. The woman knew that her situation looked suspicious: she was a pregnant, previously married woman, and so she no doubt feared the punishmentagain, which would have been death. I swear by God, she declared to Ab Ms, that: I have not taken a lover or become intimate with any male companion since I converted to Islm. However, sometime when I was sleeping in the enclosure (fan) of my own homeby GodI woke up to find a man atop me, thrusting
94 On privacy in Islamic law, see Eli Alshech, Do Not Enter Houses Other Than Your Own: The Evolution of the Notion of a Private Domestic Sphere in Early Sunni Islamic Thought, Islamic Law and Society 11, 3 (2004): 291-332, 317 (noting that pre-Islamic Arabs craved privacy but that existing social and architectural normsas in the fact that ijz homes lacked screens or doorsoften frustrated that desire) (citing Fakhr al-Din al-Rz, al-Tafsr al-kabr). On the urban conditions experienced for the first time with the Arabs rapid migration to the garrison towns (amr) accompanying the spread of Islam, see Lapidus, Islamic Societies, 45-53. 129

himself into me like an arrow. I looked at him to identify him, (but) was left with no idea as to who he was from amongst all of Gods creatures!95 Ab Ms was perplexed. If the woman had admitted to being guilty of a crime, the case would have fit a cut-and-dried model, and he would impose the add sanction. But she had not, leaving him as nonplussed as she presented herself to be. He wrote to the caliph Umar back in Medina to ask how he should proceed. In response, Umar summoned Ab Ms along with the accused woman and a few people from her tribe to vouch for her. When the delegation arrived, the woman repeated her story to Umar, who then asked her people about her character and mental state; they vouched for her and praised her generously. Umar surmised then that the woman was perhaps put to sleep for the perpetrator to do this deed. Instead of punishing her, he fed, clothed her, and instructed her people to treat her well.96 In another version of the story, it was a pregnant woman (imraa akhma)97 who herself came to Umar in the small area called Mina near Mecca, riding atop a donkey and crying profusely. When she reached Umar, he asked her, Why are you crying?, then speculated that perhaps the woman was raped.98 She told him that she was typically a heavy (and presumably early) sleeper (inn imraa thaqlat al-ras), but that one night she was able to stay up to perform the night prayer before sleeping. I swear by God that, when I woke up, a man was atop of me; I looked at him to identify him, but had no idea who he was amongst all of Gods creatures! Umar remarked that he
95 Ibn Ab Shayba, Muannaf, 9:360-61, no. 27,970.
96 97

Ibid.

The illustrious Mlik jurist Shihb al-Dn al-Qarf reads that she was pregnant as in the first version. See Qarf, Dhakhra, 12:60.

98 Qarf puts this in the second person, that is, perhaps you have been raped. Ibid. See also Sann, Mudawwana, 7:2444 (equating sex with a sleeping woman to rape).

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feared Gods wrath if [he] sentenced this woman to death.99 Accordingly, he ruled that no add punishment applied because the woman neither admitted to being guilty nor was she known to be of bad moral character. Clearly, an act of zinif strictly defined as illicit sexual relationshad taken place; but it was not clear that the woman was culpable. Instead, she seemed to be a victim, possibly of rape. This brings us to another case of rape, similar to the story of Al and the man found with the butchers knife recounted in Chapter 1.100 In this case, the sources report that early one morning (f sawd al-ub), a man raped a woman while she was on her way to the mosque to perform the morning prayer. As she cried out to a passerby for help, the rapist fled, and the passerby took off after him. The woman then saw a group passing by, so called out to them for help. They caught up with the man to whom she had appealed for help and, thinking he was the rapist, arrested him. Then they brought that man along with the victim to the Prophet to preside over the matter. The woman accused the man of perpetrating the rape and the group of men confirmed that they had overcome him and captured him. The man demurred, saying, I was the one trying to help her [catch] the rapist, and these people overcame and arrested me. The woman insisted that the man was the rapist, and the Prophet reportedly sentenced him to death-by-stoning. But just then, they heard someone in the crowd shout, Dont
99 Ibn Ab Shayba, Muannaf, 9:361, no. 27,891. On the last comment, the meaning of Umars actual comment is somewhat obscure. The text in the Muannaf says that Umar makes reference to his fear of the fire looming as large as two sizable mountains in the ijz (called Akhshabn?) or his fear that any mistake in imposing the death penalty would be as if those mountains themselves would be set aflame (khashaytu al l-Akshabayn al-nr). The editor remarks that in other variants, his remark could be read to mean the following: if I killed this woman standing between these two mountains, God would punish them [the people]. Ibid., note 1 (citing Bayhaq, Sunan, 8:336).
100

See Qumm, Qay, 88-89 (cited in al-urr al-mil (d. 1104/1692), Wasil al-Sha, 2:172, no. 2)). The story is recounted in Ibn al-Qayyim (d. 751/1350), uruq, 82-84 (quoting Qay), and above, at the beginning of Chapter 1, pp. 2-3 note 2 (listing additional sources). 131

stone him; stone me! I am the one who committed the crime against her! Now all three parties stood before the Prophet: the man who had raped the woman, the man who had tried to help her, and the victim. Umar urged the Prophet to stone the one who confessed to zin, but the Prophet refused. Instead, he released the falsely accused man and forgave the rapist, saying that he had repented.101 The Prophets decision here accords with the reports of his treatments of Miz followed by Umars treatment of the mysteriously-impregnated woman. In this line of cases, the overall thrust is toward udd avoidance. It is as if the judges in each case the Prophet or another early authorityaimed to avoid the add punishment despite fairly solid indications that some crime had taken place. The Prophet tried to deter Miz from confessing; he came up with excuses for him and then censured the people for carrying out the add sentence after Miz tried to escape. Umar displayed an immediate willingness to ascribe no-fault to the pregnant woman, similarly coming up with the excuse of rape even before hearing the womans testimony. And the Prophet and Al declined to punish men who in two cases had admitted to the most serious of crimesrape and murder, respectivelyeven in the face of probative testimony or seeming evidence of foul play. How to explain these cases? This trend of udd avoidance here appears to not go well with the previous insistence on udd enforcement meant to counter status hierarchies and policies of elite undercriminalization and to maintain a sphere of jurisdiction to balance against such policies pursued by the political authorities. If the
101 See Ibn al-Qayyim, uruq, 84-89 (citing multiple versions and discussing discrepancies as to what actually happened, from the collections of Nas, Amad b. anbal and Ab Dwd). On the discrepancies, see below, Section III.B.3. 132

jurists aimed to enforce udd laws to serve their claim to the moral authority to insist on doing so, that aim was not served by making exceptions to the enforcement rule. With status hierarchies in mind, the whole thrust of the claim against preferential treatment in the law was to highlight and oppose arbitrarily differential treatment, specifically unwarranted udd avoidance for certain classes. So what was the basis for pursuing that track of avoidance now? I want to argue thatcounter to some initial conclusions otherwise102status hierarchies were separate from the jurists concerns at the heart of these decisions emphasizing udd avoidance. Instead, the difference in treatment had to do with the nature of the punishment: death. Here, the common thread is that the death penalty is the sanction for the acts in question: adultery, rape, murder. The previous set of cases involved mutilation (hand amputation for theft) and corporal punishment (flogging for drunkenness). While these sanctions appear to the modern eye to be extremely harsh, they in no way compare to the harshness and irrevocability of deatheven to the medieval eye accustomed to mutilation as a common criminal sanction in many legal traditions. In the previous set of cases, guilt was not at issue; the crimes had been established by confession or proved and the only question was whether there was cause for avoiding the sanction. Here, questions of culpability arose from evidentiary infirmities. Already, the evidentiary burdens were highrequiring four witnesses to the sex act for an adultery conviction or that those alleging homicide swear fifty oaths

102 That is, those of Fierro in When Lawful Violence Meets Doubt, 233ff. 133

about the liability for a murder.103 Further, the judge in each case finds (or creates) some evidentiary doubt that calls individual culpability into question; even where guilt was not at issueas in the case of Mizthe Prophet sought to avoid punishment even to the point of avoiding trial! These heightened procedures correlate directly with the high stakes of the death penalty and the jurists regard for the gravity of taking life the preservation of which jurists take the Qurn to emphasize as one of the core values it aimed to promote. More procedure, which shaped strategies for udd avoidance, was the juristic solution to observing the moral imperatives to preserve life. These concerns were also manifested in them treading cautiously when it came to matters of life and death. As had judges in the American context when deciding on the constitutionality of the death penalty, these cases show how Muslim jurists used heightened procedures to declare that death is different.104
103 For the four-witness requirement for zin, see Qurn, 4:15, and for the related four-oath procedure of mutual imprecation (plus a fifth invoking Gods wrath for lying) for spousal accusations of zin, called lin, see Qurn 24:7, 9; on the fifty-oath procedure called qasma, see Peters, Origins of the Qasma Procedure, 132-67.
104 Constitutional challenges to capital statutes for arbitrary enforcement persuaded the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), to strike down three death sentences and impose a moratorium on the death penalty as cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the U.S. Constitution. In a divided Court, some Justices explained that capital punishment had to rest on rational and fair procedures because of the finality and irrevocability of death. See ibid., 28689 (Brennan, J., concurring) ([d]eath is a unique punishment; [d]eath ... is in a class by itself); ibid., 306 (Stewart, J., concurring) (The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.). Since, the Court regularly has recognized the principlethough with an increasingly critical eye since the late 1980s. See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) ([The] penalty of death is different in kind from any other punishment and unique[].); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) ([The] penalty of death is qualitatively different from a sentence of imprisonment, however long.); Gardner v. Florida, 430 U.S. 349, 357, 358 (1977) (Death is a different kind of punishment from any other that may be imposed in this country, and thus requires any decision imposing death to be, and appear to be, based on reason rather than caprice or emotion.); Lockett v. Ohio, 438 U.S. 586, 604 (1978) ([The death penalty is] qualitatively different); Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (imposing special procedural safeguards for defendants in capital cases in recognition of the difference of death); Spaziano v. Florida, 468 U.S. 447, 459 (1984) (citing the Courts prior recognition of the qualitative difference of the death penalty); ibid., at 468 (Stevens, J., concurring in part and dissenting in part) (repeating that the death penalty is qualitatively different ... and hence must be accompanied by unique safeguards); Wainwright v. Witt, 469 U.S. 412, 463 (1985)

134

These reports were carefully selected, packaged, and retold in abundance by jurists of the second and third centuries and afterward, signifying the ideals governing the application of criminal jurisprudence and providing the backbone of the chapters on criminal law in legal treatises. As such, it can be fairly posited that the selective preservation of these reports reflects the moral anxieties facing these jurists who had claimed the moral-epistemic authority to interpret the law but were also cognizant of the harsh realities of institutional violence that they saw virtually unregulated in the political sphere. They were anxious over the consequences of not getting it right. The realities had both this-worldly consequences and otherworldly onesparticularly when they involved death; and jurists thought themselves accountable before God for

(Brennan, J., dissenting) (citing the previously unquestioned principle that the death penalty necessitates unique safeguards because it qualitatively different); McCleskey v. Kemp, 481 U.S. 279, 340 (1987) (Brennan, J., dissenting) ([It] hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death.); Booth v. Maryland, 482 U.S. 496, 509 n.12 (1987) ([Death is a punishment different from all other sanctions.) [overruled on different grounds by Payne v. Tennessee, 501 U.S. 808 (1991) (allowing victim impact testimony in capital proceedings)]; Harmelin v. Michigan, 501 U.S. 957, 965 (1991) (holding that, while the Eighth Amendment contains no [comparative] proportionality guarantee, capital cases should be reviewed for proportionality because death is different); Atkins v. Virginia, 536 U.S. 304, 337 (2002) (Scalia, J., dissenting) (complaining that the majority opinion holding it cruel and unusual to punish retarded persons with death is the pinnacle of ... death-is-different jurisprudence); Ring v. Arizona, 536 U.S. 584, 60506 (2002) (affirming that no doubt [ ] [d]eath is different) (citation omitted); ibid., 614 (Breyer, J., concurring in the judgment) (The Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty.); Schriro v. Summerlin, 542 U.S. 348, 363 (2004) (Breyer, J., dissenting) (referring to the dramatically different nature of death); Kansas v. Marsh, 548 U.S. 163, 208, 210 (2006) (Souter, J., dissenting) ([R]epeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests [places us] in a period of new empirical argument about how death is different.) (citations omitted); Kelly v. California, 129 S. Ct. 564, __ U.S. __ (2008) (reviewing death-is-different jurisprudence). On the recent trend toward less procedure in capital cases, see Baze v. Rees, 128 S. Ct. 1520, 1550; __ U.S. __ (2008) (Stevens, J., concurring in the judgment) ([Despite] our decisions rel[ying] on the premise that death is different from every other form of punishment to justify rules minimizing the risk of error in capital cases [i]ronically, more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.); Abdul-Kabir v. Quarterman, 550 U.S. 233, 284 (2007) (Scalia, J., dissenting) (Whether one regards improvised death-isdifferent jurisprudence with disdain or with approval, no one can be at ease with the stark reality that this Courts vacillating pronouncements have produced grossly inequitable treatment of those on death row. This is not justice. It is caprice.). 135

arrogating to themselves the right to take life or punish without clear sanction from the laws that had been outlined in the foundational texts. Later commentators illustrate this point by placing particular emphasis on the judgments and governing policies of Al. Until now, we have been concerned with decisions in the larger proto-Sunn context. But Al is a major factor in the equation from both Sunn and Sh perspectives. Naturally, Sh jurists take him to be the paragon of virtue and just rule in all spherespolitical and religiousas the Imm in closest and longest contact with the Prophet and the only Imm to have had both effective political and spiritual rule. The sources portray Al as having insisted on principles of justice, equity, and distinction-by-piety in his judicial decisions and other governmental-legal policies. Alongside the judicial decisionsdiscussed at length belowone display of these principles appears in a celebrated letter of investiture and advice to a deputy, Mlik b. al-Ashtar al-Nakha (d. 38/658), on the occasion of his appointment as governor of Egypt. In the opening section of the letter, Al advises his companion to be mindful of his godly duty to provide good governance and cautions him to deal justly with the people on the basis of common religion and humanity: Treat your subjects well, justly, compassionately; do not be like a voracious predator over them, consuming their wealth [literally: food], for surely they are of two categorieseither your brother in religion or your equivalent in humanityso overlook their faults and turn away from their deficiencies.105 The letter has been
105 Al-Sharf al-Ra, Nahj al-balgha, 426-45, letter no. 53 (wa-ashir qalbak al-rama lil-raiyya wal-maabba lahum wal-luf bi-him, wa-l taknanna alayhim sabuan riyan taghtanim aklahum fa-innahum infn imm akh lak f l-dn wa-imma nar lak f l-khalq yafru minhum al-zalal wa-tari lahum al-ilal). Notably, this version does not mention lineage or status as the basis for just treatment, unlike another recension recorded in the Isml context. In Q Numns version of the letter, the passage reads they are your brethren in lineage instead of religion. Q Numn, Daim, 1:417 (fa-innahum ikhwnuk f l-nisba ). 136

taken as a model for Islamic political theory, especially in the Sh context, as the earliest and most detailed work of its type.106 The letter also appears in the collections of documents intended to provide judicial and administrative guidance in the Sunn context.107 Sunn jurists also hold Al in high regard so far as it concerns other legal principles and judicial policies. For example, in another context, Al is credited with being a main sourcealongside the Qurnfor the Islamic law of rebellion. In fact, when it comes to Muslims fighting each other, multiple legal treatises point to Al [as] the example and the teacher.108 In our context, the influential Sunn jurist Ibn alQayyim too specially highlights Als criminal decisions as exemplary and indicative of sharp judicial insight closely attuned to Islams moral imperatives.109 Strikingly, he draws on Sh judicial records for his own source material. The cases reported about Al as preserved in the Alid community and repeated in the Sunn circles are noteworthy also because of their provenance. They appear in
This second version is possibly a corruption of the text (nisba for dn and ikhwnuk for akh lak) that may have been inadvertent and/or indeed have reflected a norm in that community of differential treatment on the basis of status. This, despite the fact that Mlik al-Ashtar never actually took office, since he was poisoned in a town near the Red Sea before he ever got to Fus. There are dozens of commentaries, monographs, and translations on the ahd alone in addition to the dozens of commentaries and super-commentaries on Nahj al-balgha (which contains the ahd in letter no. 53). See Abd al-Zahr al-usayn al-Khab, Madir Nahj al-balgha wa-asnduh (Beirut: Muassasat al-Alam lil-Mabt, 1975), 3:424-31; Muammad Musin gh Buzurg al-ihrn, al-Dhara il tanf al-Sha (Najaf: Mabaat al-Ghr, 1936), 4:118-20, 13:373-75, 15:362-63 (on the ahd), and 6:228-29, 7:187-207, 14:111-61, 24:412-13 (on Nahj).
107 106

See Qalqashand (d. 821/1418), ub al-ash f int al-insh ([Cairo]: al-Muassasa al-Miriyya almma lil-Talf wal-iba wal-Nashr, 1964). For a discussion of the different recensions of the letter and questions of authorship that arise in both Sunn and Sh literature, see Wadd al-Kadi, An Early Fimid Political Document, Studia Islamica 48 (1978): 71-108, 75-76 (concluding that there were two main recensions of the lettera Maghrib one that appeared in the first half of the 4th/10th century and was used by Q Numn, and an Irq one that appeared in the last decades of that century at the latest and that is included in the Nahj). Abou El Fadl, Rebellion and Violence, 34 (Al al-qudwa wal-muallim) (quoting Simnn, Rawa and others). See Ibn al-Qayyim, uruq, 43ff and passim (discussed below). 137

108 109

records of a community that was out of political power and had no easy hope of gaining it back at the time its members made these records. The earliest available written materials recording Als judgments in more than just passing reference hail from the mid-2nd century: Ab Abd Allh Muammad b. Qays al-Bajal (d. 151/768-9) collected judgments in his well-known work, Kitb Qay Amr al-Muminn (The Book of Commander of the Faithful [Al]s Judgments).110 In addition, though penned during his lifetime, Bajals work probably incorporates material from earlier sources endorsed by the Fifth Imm Muammad al-Bqir (who died a few decades before him) to which he added material.111 The book may have in turn served as a basis for Ibrhm alQumms later collection of a similar title with many more additions, as described below.112 The most comprehensive collection of the early period reporting his judgments at length is that of Ibrhm al-Qumm. In this compilation, strikingly, about half are criminal decisions. The high percentage of criminal cases may be coincidence; but it may also indicate a high degree of concern with moral and institutional jurisdictional concerns expressed through criminal law. These decisions would have served as legal
110 See Modarressi, Tradition and Survival, 346 (quoting Ab l-Abbs Amad b. Al al-Asad al-Kuf alNajsh (d. 450), Rijl [= Fihrist asm muannaf l-Sha], ed. M. Sh. al-Zanjn (Qum: Muassasat al-Nashr alIslm al-Tbia li-Jamat al-Mudarrisn, 1407/[1986-7]): 323). NB: The editor of Qumms Qay prepared a critical edition of that text, for which he notes two different versions of the text on the basis of different manuscripts. I have omitted citation to the second version unless there is some material difference between the two texts. Ibid., 346 (The beginning sentence of the work quoted in Fihrist: 108 is the same as that of the similar book by Ubayd Allh b. Ab Rfi as given in Najsh: 6, indicating that Muammad b. Qays took a copy of that earlier work, which was endorsed by Muammad al-Bqir as in Fihrist: 108, and incorporated into it other material he had heard from the latter from or about Al. There are many quotations from this author of material that relates to the topic of this work .). The work has been published as an independent volume, wherein the editor has attempted to collect all of the quotations attributed to the above-mentioned book in order to reconstruct it. See Bashr alMuammad al-Mzandarn ed., Musnad Muammad b. Qays al-Bajal (Qum: al-Markaz al-lam lil-Dirst al-Islmiyya, 1409/[1989]). 138
112 111

commentary and critique of criminal law practices and legal doctrines in the majority community, and thereby would have provided a useful vehicle for articulating the Sh communitys moral concerns designed to critique if not rein in the state excesses. The Sh communitys removal from the mainstream community offers an opportunity to gain insights into that communitys aspirations and regard for the law depicted through Al as the foremost legal authority after the Prophet. As such, the collections of his judgments represent not perspectives of jurists attempting to define the contours of their own jurisdiction and relationship with political authorities (as in the Sunn context), but jurists concerned with those contours and relationships of others (i.e., the Sunn jurists and the political authorities). That is, with no real hope for political power, these jurists were not concerned directly with balancing their power against that of the state. That is not to say that they did not comment on criminal and other public laws; these records and others show emphatically that they did. Yet it is to say that their main interest was in preserving records of the proper lawsand as such, always represented an implicit challenge or critique to the mainstream actors based on a heightened sense of moral consciousness. Their relegation to the sidelines in significant measure for some time meant that Imms could maintain a more moralistic tone, andas has been observedoften did display a decidedly moralistic bent.113 The records of Als judgments then offer a vision of what proper criminal jurisprudence

113 One scholar notes that, in discussions of rebellion in Islamic law, Sh discourse was moralistic and affirm[ed] a high ideal, in part to accord with their unique theology concerning leadership and in part because of their separation from and opposition to the broader Sunn community that had control over political leadership. See Abou El Fadl, Rebellion and Violence, 218, 295-320 (quotation on p. 319). 139

ought to be in a regime concerned first with moral precepts of justice and subservience to divine will.114 The following section examines those decisions. 2. Al: Exemplar of Justice Records of Als criminal law judgments fall into three broad categories. First and foremost, they are designed to show his superior judicial acumen, especially as pitted against the representative of the Sunn tradition in Umar. (Recall that Umar and Al both were held up as exemplars of law as opposed to Uthmn, and that, after the Prophet, Umar often features prominently in the Sunn criminal law reports.). Second, they show his jurisprudence as morally engaged and, third, as subservient to Gods will. That is, the judgments depict him placing a heavy premium on udd avoidance while maintaining the rule of mandatory enforcement of udd laws however reluctantly. He is plagued with an extreme moral anxiety about getting it
114 Similar arguments have been made about the writings of the Jewish community, which was accustomed to being out of power, but elaborated notions of public law nonetheless. An example is the writings of celebrated 12th century Egyptian scholar and philosopher of Jewish law with close connections to the Muslim community, Moses Maimonides. With the stated intent of examining practical morality through combing the judgments and justifications contained in historical cases, Michael Walzer finds Maimonidess rulings on conventions of war implausible at best and observes that they might even be regarded as hopelessly nave. However, he comments that they are explicable because they come from the pen of a community member who is out of power but seeking to recognize, highlight, and call for vindication of the rights of the powerless. See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), xv, 168 (When siege is laid to a city for the purpose of capture, it may not be surrounded on all four sides, but only on three, in order to give an opportunity for escape to those who would flee to save their lives . But this seems hopelessly naive. How is it possible to surround a city on three sides? Such a sentence, it might be said, could only appear in the literature of a people who had neither state nor an army of their own. It is an argument offered not from any military perspective, but from a refugee perspective.) (quoting Maimonides). Cf. Daniel Marx, Perjury and the Power of the Court (unpublished paper, presented at the Law and Public Affairs LEGS Seminar in December 2008) (noting a trend in Jewish law of rabbinic interpretations of criminal punishments as atonement and a tendency to eliminate capital punishment as a justiceregarding strategy of a minority community charged with interpreting public laws over which it has little actual sway). For an alternate view, arguing that Maimonides was a man of action intent on remov[ing] significant divergence(s) between law and [the Islamic] society [in which he lived], though presumably outside the realm of criminal law, see Mark Cohen, The Trias of Maimonides, in Studia Judaica: Forschungen zur Wissenschaft des Judentums, ed. Georges Tamer (Berlin; New York: Walter de Gruyter, 2005): 65-81, 65 (quoting S.D. Goitein, Maimonides, Man of Action: A Revision of the Masters Biography in Light of the Geniza Documents, in Hommage Georges Vajda: tudes dhistoire et de pense juives, ed. Grard Nahon and Charles Touati (Louvain: Peeters, 1980): 155-67). 140

wrong and thereby violating the very moral imperatives and subservience to divine legislative will that he sees as underlying the criminal law regime. a. Judicial Acumen: Al vs. Umar In a typical scenario displaying Als superior approach to criminal law, he hears of a case where Umar has sentenced a woman to death. Her husband had been absent for two years, and came back to find her pregnant. Umars immediate reaction was to command that she be stoned for infidelity. When Al hears of the decision, he rushes to Umar, saying if this is your decision as to the woman, then what about her son? He managed to convince Umar to delay the sentence until the woman gave birth, then until the baby had grown teeth. The husband eventually claimed paternity (rightly or wrongly). Observing this gradual turn of affairs over the years, Umar regretted his initial decision to sentence the woman to death, which would have been incorrect so long as the husband claimed the child, as he now did. He remarked that women are unable to carry someone like [as great as] Al; if it were not for Al, [I] would be at a loss!115

115 Qumm, Qay, 119 (law l Al la-halaka Umar) (citing variants in Mufd, Irshd; idem, Ikhti; im [sic = pseudo-im, Ibn Bism], Zayn al-fat; Khwrazm, Manqib; Ibn Shahrshb, Manqib; Kanj, Kifyat al-lib [f manqib Al b. Ab lib]; Kashf al-ghumma; Muibb al-Dn al-abar, al-Riy al-nira; idem, Dhakhir al-uqb; al-Allma al-ill, Kashf al-murd; idem, Mustajd; al-asan b. Muammad alDaylam, Irshd al-qulb; Majlis, Bir al-anwr; Qundz, Yanb al-mawadda; Jafar al-Naqd, Ghazawt Amr al-muminn; Muaffar, Dalil al-idq; Musin al-Amn, Madin al-jawhir; and in adth analyses from other sources, including additional Sunn compilations: Bayhaq, Sunan, Ab Umar, Ilm; Bqilln, Tamhd; al-Muttaq al-Hind, Kanz al-Umml; Ibn ajar, Fat al-br; al-Iba; Ibn Ab al-add, Shar Nahj albalgha). For a similar case, see ibid., 263-64 (a second version not involving Umar and where people testified against a woman, who then claimed she was married although the husband had not yet returned) (citing variants in Ibn Bbawayh, Faqh; s, Tahdhb, 1:25; idem, Istibr; al-urr al-mil, Wasil). This same sentiment appears elsewhere in the Zayd law, recorded in the same period and appended to a different scenario in which Al instructs Umar in udd avoidance based on evidentiary infirmities. See Amad b. s b. Zayd (d. 248/362), Aml (also called Kitb al-Ulm), collected and commented upon by Muammad b. Manr b. Yazd al-Murd al-Kf ([Yemen]: Ysuf b. al-Sayyid Muammad al-Muayyad al-usn?, 1401/1981), 4:204. 141

In the end, this case turned into one that was more about formalities surrounding paternity than actual infidelity. That is, if the husband claimed the child, the add punishment for adultery could not have applied, regardless of whether he had actually been present to father the child. The paternity claim took precedence over the adultery accusation; and had Umar carried out the sentence before the child was born, the later paternity claim would have retroactively rendered that sentence erroneous, and Umar would have felt the spiritual brunt of that decision.116 Sexual relations were fluid in pre- and early Islamic societies, and the Qurns sexual ethics emphasized regulating them.117 For a society in which status and social entitlements were determined on the basis of family and tribe, assigning paternity was a significant problem of illicit sexual relations that resulted in pregnancy. This is what is at stake in another famous maxim circulating during this periodthe child belongs to the marital bed (al-walad lil-firsh), the origins and function of which scholars have debated at length.118 This is also what was at stake in defamation and cases of mutual

116 For a case that similarly deals with paternity under the guise of an adultery claim, see Qumm, Qay, 264 (second version) (addressing circumstances of a slave-driver having sex with a slavewoman while the actual master or owner is gone; Al returned the slavewoman to the initial owner but imposed no add punishment, commanding instead simply that the son stay with the slave-driver who had actual paternity).
117

For an excellent discussion, see Harald Motzki, Wal-muantu mina n-nisi ill m malakat aimnukum (Koran 4:24) und die koranische Sexualethik, Der Islam 63 (1986): 192-218.

Joseph Schacht first makes reference to this maxim in a half-page discussion in his The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), 181-82; see also Crone, Roman, Provincial and Islamic Law, 10, 96ff (collecting Schachts references in five other works, and challenging his attribution of this maxim to Roman law). Several scholars have focused on this maxim in their treatments of early adth literature to challenge Schachts initial characterization of it. See Harald Motzki, The Muannaf of Abd al-Razzq al-ann as a Source of Authentic Adth of the First Century A.H., Journal of Near Eastern Studies 60 (1991), 18; idem, Anfnge/Origins, 126, 128-30; idem, ed., adth: Origins and Developments (Aldershot: Ashgate Variorum, 2004) (Introduction); Uri Rubin, Al-walad li al-firsh, Studia Islamica 78 (1993): 5-26; G.H.A. Juynboll, Some Notes on Islams First Fuqah Distilled from Early adth Literature, Arabica 39 (1992): 287-314; Crone, Roman, Provincial and Islamic Law, 10, 96ff. 142

118

imprecation (lin),119 where a husband accuses his wife of infidelity but she declares her innocenceboth through oaths, both ultimately deferring judgment on the truth of the matter to God in the afterworld. Given the high stakes of criminal sanctions and of disassociation with any family, the concern with these issues was not with factual truth (if indeed it could be known) but legal truth and resolution of a very real social problem: to which family should the child be attached? The paternity maxim and, here, Als judgment, sought a pragmatic solution that would avoid the harsh consequences of a capital case on facts of which he could not reach 100% certainty. The husbands eventual admission of paternityhowever dubiouseventually served to cancel add liability. Al had a hunch that events would take this turn, or he helped engineer matters such that they would, and thereby avoided imposing the add punishment that Umar was so ready to impose.120 In second case, Al saved another man from Umars quick and harsh judgment. A woman in Medina took a liking to a neighbor (an Anr man), but was unable to attract his interest. She devised a scheme hoping to trap him into marrying her or else risk being punished; she placed egg yolk on her clothes and then came to Umar, claiming that the man had had sex withor possibly rapedher. Umar immediately decided to punish the man, presumably sentencing him to death (for adultery or rape). But Al again intervened at the Anr mans request. Al worried about imposing the
119 For a definition, see above, note 103. See also the brief discussion in Peters, Crime and Punishment, 63, 159, 195. Sunn sources regularly depict the Prophet as having done the same thingturning away a pregnant woman who had confessed to adultery until she had had the baby, nursed him for two years, and raised him until the age of discernment. But in those stories, the Prophet finally, reluctantly imposes the add punishment. The stories are adduced to prove the validity of stoning and the necessity of imposing even that harshest of add punishments; there, the interest of arguing that this non-Qurnic punishment is valid takes precedent over the concern with leniency born of moral anxieties that appears in this and other reports of the Prophets criminal law punishments. 143
120

death penalty on such thin evidence; surmising that there might be some foul play at work, he ordered that the womans garments be dipped in boiling water, and this showed that the substance on her clothes was mere egg yolk. The woman confessed to the set-up, and the report states that God had [thus] averted the punishment from the Anr man by means of Al.121 Again, the sources depict in Al a tendency toward lenience in the face of harsh justice and that his conscience led him to focus on getting to the core of the matter before making a decision so grave as a sentence of death. In a final, fairly sensational case, Al shows his cunning againthis time, saving an orphan from an unjust accusation. Again, under Umars reign, a woman came to him accusing an orphan girl in her care of committing zin (fornication) with her husband. The orphan denied the charges. This time, Umar was unsure how to decide the case, and asked Al for his advice. Al asked the woman to produce evidence, and she presented several of her neighbors to corroborate story; through their testimony, it became apparent that the girl was no longer a virgin. The Qurn itself required that accusations of sex crimes be proved by four witnesses to the act, and jurists interpreted that rule as referring to male witnessesplacing severe restrictions on womens testimony in criminal cases. But here, gender seemed not to be at issue; the burden of proof was. Nonetheless, as is now to be expected, Al added heightened requirements before he would accept the womens testimony for a crime involving the death penalty. He separated the women, ordering each to a different room to be questioned
121 Qumm, Qay, 140 (wa-dafaa Allh an al-Anr uqbat Umar bi-Al) (citing variants in Kulayn, Kf; al-Sharf al-Ra, Khai al-Aimma; Mufd, Irshd; Karjik, Kanz al-fawid; s, Tahdhb al-akm; Ibn alQayyim, uruq; al-urr al-mil, Wasil al-Sha; Majlis, Bir al-anwr; Musin al-Amn, Madin aljawhir; Amn, al-Ghadr). 144

separately. He asked each if she would retract her testimony, but they all refused initially. Al kept pressuring them to tell the truth until one woman looked up to Umar and begged for immunity if she did. She explained that the woman was raising the orphan with her husband, who was often traveling on long trips for business. The orphan grew into a beautiful young woman, and this caused the woman to feel insecure, fearing that when her husband returned from his travel, he would take up with the orphan. So she gave the girl wine to drink and called us for help with her scheme. We held the girl while she took her virginity with her finger. Al sentenced the wife to receive the add sanction for the crime of defamation, made her pay a penalty of 400 silver pieces, and separated her from her husbandmarrying him to the orphan instead.122 * * *

In all of these cases, Al appears the cunning wise advisor, quick to interrogate the evidence and slow to punish in the face of a ruler-judge represented by Umar who has quite the opposite tendencies. Choosing Umar as the symbol of power makes sense if Sh scholars were searching for a good candidate for a harsh law-and-order personality against which to pit a more lenient Al amongst the early Islamic authorities. Despite his appeal as exemplar in some criminal cases in which he champions lenience,123 Umar is more often depicted even in Sunn literature as one
122 The report remarks that Al was the first to have separated witnesses to get the truth after the Prophet Daniel, and that his judgment was following that precedent. See ibid., 146-47 (the case of Al followed by the story of Daniel) (cited in Kulayn, Kf; Ibn Bbawayh, Faqh; s, Tahdhb al-akm, and other literary sources, including Ji, Kitb al-Uthmniyya and Ibn ws, Bin al-maqla al-Fimiyya [f naqd al-Risla al-Uthmniyya]); see also Ibn al-Qayyim, uruq, 84 (quoting Qay Al). The corporal punishment and monetary fine are the expected, regular punishments for defamation and taking virginity, respectively. The marital separation and re-marriage reported here is irregularperhaps uniqueas it is unattested in any legal source and I know of no other instance in records of judicial cases. As such, it may be a case of gilded embroiderythe narrator or copyists embellishment to the punishment to emphasize the wrongheadedness of the wife and what he takes to be the justice of Al.
123

E.g., the case of the pregnant woman above, notes 95-99 and accompanying text. 145

quick to volunteer to take a sword to someones head for the slightest disrespect to the Prophet or hint of wrongdoing; as one scholar put it, the Sunn sources [portray in him] the image of a man with his heart in the right place, but a tendency to go too far.124 He is also the one credited with instituting a number of post-prophetic policies that endured as permanent features of Islamic law, tending to limit flexible aspects of existing law and impose additional burdens, sometimes with criminal law implications.125 Most infamously in the criminal law context, the sources portray him repeatedly insisting that death-by-stoning is the appropriate punishment for adulterysaying that it was actually a Qurnic verse that was left out and that he feared that one day people would not apply it.126 Also in the criminal context, he reportedly doubled the punishment for drinking wine from the forty lashes that the Prophet is said to have legislated; having consulted with Al, he concluded that winedrinking engenders raucousness and loose tongues that are likely to defame others. Taking these expected effects as a proxy for the act of drinking itself, he legislated that the punishment for wine should include what he took to be its inevitable effect, and increased the punishment to eighty lashes.127

124 Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge; New York: Cambridge University Press, 2000), 81-82 (citing examples of his excesses in cases of wrongdoing, typically involving wine-drinking or music-playing in private).
125

See Maman, Falsafat al-tashr, 227-32 (sbiqt Umar b. al-Khab: listing his policies that had lasting legislative values in areas of the state land tax and the religious poll tax, family law, theft, zin, discretionary criminal punishments, and blood money). A portrayal of him as exerting limitations on flexibility is a tendency, not an absolute. This same list given by Maman notes that Umar suspended the add punishment for theft during times of famine; and this rule was folded into the very concept of shubha, as an illustration of add-averting doubt. See Bukhr, a, no. 6086, cf. Modarressi, Early Debates, 10. Shfi, Umm (1961) 6:144, 179-81. 146

126 127

These Sh reports take Umar to be doing more than that; they take him to be representative of the harsh and excessive policies that the Umayyads and early Abbsids pursue in their own times. Alas the wise, respected advisor in these criminal law cases saving condemned defendants from Umars zealousnessis sending a message and demonstrating lessons of proper leadership to Sunn rulers of these later periods. b. udd Avoidance: Death is Dramatically Different128 In another series of cases with less explicit references to Umar, Al continues his orientation against harsh justice. In one case, a woman accused her husband of sleeping with a slavewoman who belonged to her. The man denied any wrongdoing, saying that he had secured his wifes permission. Al wanted to underline the gravity of the accusation, but was not as concerned with actually imposing a punishment for it. He told the woman, if you are telling the truth, I will stone him; if you are lying, I will impose the add sanction on you for defamation; and if you want me to overlook [this matter], I will (in shiti an nuqlaki uqilnki). Before they proceeded any further, the call to prayer was sounded and Al stood up to pray. The woman mulled over the matter, and did not like her options, so she simply left and did not return. Al did not ask after her.129 In another version, Al sentenced the man to death; but when the woman saw that those were the consequences, she perjured herself and accepted the add sanction
128 I borrow this title from a reference in Schriro, 542 U.S. at 363 (Breyer, J., dissenting) (referring to the dramatically different nature of death), to highlight the extent to which Al exemplifies the broader principle in the Sunn context as well about the dramatically different nature of death that requires heightened procedures before udd convictions and sentencing. Qumm, Qay, 109 (citing variants in Ibn Bbawayh, Faqh; pseudo-im, Zayn al-Fat; Abd Allh b. Jafar al-Qumm, Qurb al-isnd; Kulayn, Kf; Q Numn, Daim; s, Tahdhb al-akm; idem, Istibr; Ibn al-Athr, Nihya; al-urr al-mil, Wasil al-Sha; Majlis, Bir al-anwr; Bajal, Musnad, and other sources). 147
129

for defamation. In this way, the report notes that Al avoided imposing the more serious add punishmentthe death penaltyand notes it as an application of the udd maxim (fa-udri anh al-add).130 Al also applied the udd maxim to avoid sentencing a married man to death for committing a sex crime while in prison. (Apparently, the man had committed an act of zin, though it is unclear whether heterosexual or homosexual.) Though the death penalty was taken to be the typical punishment for male sodomy or adultery, Al did not view him as a married man who could satisfy his desires lawfully because he was not physically with his wife. Accordingly, Al ruled that the man should get the lesser punishment of lashing (alayh al-add wa-yudra anh al-rajm).131 A similar rulingthis time involving Umar againwas applied to a man from Yemen but living in Medina, where he had committed adultery. When evidence of the act was produced and the man admitted to being married, Umar sentenced him to death-by-stoning. But Al said that the death penalty was not due here, because the man was away from his family, which was in another country; all that is due, he said, is the add punishment, that is, flogging. So the man was flogged and the death penalty avoided. 132
130 Ibid., 253-54.
131 132

Ibid., 105. See also below, note 165.

Qumm, Qay, 248-49 (fa-julida jaldan wa-udri anh al-rajm) (citing Ibn Shahrshb, Manqib and other works). Incidentally, this is one place where Al contrasts stoning with the appropriate add punishment, which could be an echo of the idea that stoning was at some point not considered the add proper, as it was not Qurnic, but was an exaggerated discretionary punishment (tazr) that came to be thought of as the add punishment for adultery very early on. The sources note that only the Khrijs, in year 40 or after, objected to that characterization, insisting that stoning was not Islamic or Qurnic. See, e.g., Ja, Akm al-Qurn, 2:108, 3:263-64, and discussion above, note 90. For similar observations in the heresiographical literature, see Abd al-Qhir al-Baghdd (d. 429/1037), al-Farq bayn al-firaq, ed. Muammad Muy l-Dn Abd al-amd ([Cairo]: Maktabat Muammad Al ubay, n..), 68; Ibn alMalim (d. 536/1141), al-Mutamad f ul al-dn, ed. Wilferd Madelung and Martin McDermott (London: al-Hoda, 1991), 485; Shahrastn (d. 548/1153), al-Milal wal-nial, ed. Abd al-Amr Al Muhann and Al 148

Several other cases depict Al avoiding harsh punishments through various means: pardons through accepting or imputing repentance to the defendants;133 announcing lesser, spiritually rehabilitative punishments for keeping crimes private in exchange for concealing ones crimes from the court and other public spaces;134 imposing ever-heightened standards of evidence to prove sex crimes;135 and mitigating add punishmentsas in the prison and traveling caseby imposing the lesser of two options for punishment or by devising rules of ascertaining lesser sanctions proportionate to diminished culpability.136 c. udd Imposition: Reluctant Enforcement Al was not solely interested in udd avoidance. The same concerns that led him to avoid the harshest udd punishments led him to issue rulings insisting on harsh punishments for certain behaviors; that was his means of displaying fidelity to Gods law and upholding Islamic moral values by observing the criminal laws. Accordingly, Al announced several instances that require harsh sanctions, especially for violations of values otherwise not mentioned explicitly in the udd laws. For example, he famously propounded an Islamic law three-strikes rule for repeat asan Fr (Beirut: Dr al-Marifa, 1990); pseudo-Nshi, Masil al-imma, ed. Josef van Ess (Beirut; Wiesbaden: In Kommission bei F. Steiner, 1971), 69 (all cited and discussed in Hossein Modarressi, Trkhiyyt: Majma-i maqlt va taqqt-i trkh (Niy Jirs: Aylat-i Muttaida, 2009), 209 (noting that the Azriqa sect of Khawrij rejected the stoning punishment on the basis that it had no basis in the Qurnic text and was not a matter of consensus of the earliest community [quoting the following from pseudo-Nshi: ankar l-rajm wa-lam yjib min al-shari ill m naa alayh al-Qurn aw-naqalah firaq ahl al-alt kulluhum bil-ijm])).
133

E.g., Qumm, Qay, 76 (forgiving a man for pederasty, and against queries that he was neglecting udd laws (a-tuail add min udd Allh?), saying that an Imm may pardon a man who comes to him, confesses, and then repents).

E.g., ibid., 99 (ruling that the appropriate sanction for having sex with ones mother was 100 lashes as harshly as possible to the bare skin, but that if the matter is not brought to the authorities (the Imm), the perpetrator should repent and perform the ajj pilgrimage walking).
135 136

134

E.g., ibid., 103, 105, 107. E.g., ibid., 12 (imposing of the add for a sex crime with a -manumitted slave). 149

offenders: a repeat convict of fornication was death-eligible after the third offense.137 Those guilty of committing bestiality are to receive a punishment just shy of the add for zin plus pay the value of the animal to its owner.138 A rapist always receives the death penalty, whether or not he is married (though an unmarried sex offender otherwise would typically be sentenced only to flogging).139 Non-Muslims receive the full add sanction for defaming Muslims, although they typically are not subject to the requirements of Islamic law.140 And the list goes on, filling the juristic treatises with instances in which punishments are due over and above those mentioned in the Qurn. The more serious the moral offensesuch as male sodomy and multiple-repeat offensesthe harsher the punishment. Concerns with fidelity and subservience to the divine law and the moral values it espouses undergirded the statements in the reports questioning whether Al meant to completely neglect the udd laws in his actual judgments of udd avoidance. For example, when Al pardoned a man for pederasty, the defendant himself asked Al incredulously whether he was suspending the criminal laws.141 In that case, Al appealed to the right of the Imm to pardon whom he pleaseswhich becomes his prerogative if the crime is established by the offenders voluntary confession. But in

137 Ibid., 99 (citing variations in Kulayn, Kf; al-urr al-mil, Wasil; Majlis, Bir); cf. ibid., 97 (noting that slaves, because they are to receive half the punishment of free persons, are death-eligible on the eighth offense).
138

Ibid., 100 (citing Kulayn, Kf; Q Numn, Daim; s, Tahdhb; idem, Istibr; al-urr al-mil, Wasil al-Sha). Ibid., 100 (citing Kulayn, Kf; Q Numn, Daim; Ibn Bbawayh, Faqh; idem, Muqni; al-urr almil, Wasil al-Sha; abars, Mustadrak [al-Wasil]).

139

Ibid., 99. Another exception is wine-drinking in public; while non-Muslims may freely drink wine in Muslim lands, they may notAl helddo so brazenly. See ibid., 262.
141

140

Ibid., 76 (a-tuail addan min udd Allh?). 150

other cases, where he was unable to do so, the sources depict him as imposing the add punishment reluctantly. One episode has it that a woman came to him confessing adultery and requesting the associated penalty.142 Al started down his normal track of trying to avoid the punishment. He asked about her circumstances to find some mitigating cause, and the woman informed him that she had committed the act while married, that her husband was not absent, and that she was pregnant. Al sent her away, telling her to wait until she had delivered the baby. The woman came back multiple times thereafter, and each time she did so, Al sent her away with another excuse: she should nurse the child for two years, then raise him until he reached a certain age, then take care of him if there was no one else to do so. As it happens, one community member Amr b. uraythvolunteered to raise the child himself and announced that fact to Al, thinking that he was alleviating the latters concern. The reality was quite to the contrary. Unwittingly, Amr had taken away Als last appeal to mitigating circumstances (i.e., the idea that she was the only one who could care for the child). He reluctantly announced that God had instructed his Prophet that whoever neglects the udd laws had gone against and opposed Me: man aala addan min udd fa-qad nadan waddan. Accordingly, Al said that he had to impose the sanction as the woman had confessed four separate times and no other impediment was available for avoiding it. So he commanded all the people to gather for afternoon prayer on the outskirts of Kufa, proclaimed that he was following the dictates of God[s] covenant with
142 Ibid., 80, 85. 151

Muammad (ahd), which he [had] passed on to [him] to enforce udd laws. Curiously, he dispersed the people, until only he remained with his two sons. Those three presumably imposed the add, though the report introduces some doubt about just what happened by noting that there was no one there to witness it. Al is then said to have gathered the people again and admonished them not to publicize crimes better left private and unpunished: whoever commits []a sin, then repent to God privately, for [I swear] by God, repentance to God in private is better than destroying oneself and throwing off His concealment [of you]!143 This case notwithstanding, Als bark as a legislator or commentator on the law is worse than his bite as a judge. He espouses the rules of harsh punishment in the books of Sh law, pointing to the moral values behind criminal legislation. But in Als judgments, the harsh rules take a backseat to what appears to be a primacy placed on a greater interest and deeper concernanxieties about applying those harsh punishments when not clearly warranted. His harsh statements of law but lenient judgments have the effect of emphasizing that the moral values underlying the criminal laws and their sanctions are binding if there is incontrovertible evidence of guilt without any mitigating factor. Yet they also manifest an outlook that regards that standard as so difficult for mere humanseven the likes of the all-knowing and

143 Ibid., 80, 85-87 (citing variants in Barq, Masin; Kulayn, Kf; Ibn Bbawayh, Faqh; s, Tahdhb alakm; al-urr al-mil, Wasil; and other sources). For this trend in Sunn law, see below, Part III.C.1-2. A similar story is told of a man who confessed to adultery and came to Al asking for the associated punishment. Al similarly sent him away several times, until the man had come back four times. Al eventually announced to the people that this was one of the claims of God (min uqq Allh), that had to be imposed, and he presumably carried it out along with his two sons, but announced that people should repent privately for crimes that God has kept private. See Qumm, Qay, 85-87 (cited in Qumm, Tafsr; Kulayn, Kf; pseudo-im, Zayn al-Fat; Ibn Bbawayh, Faqh; Ibn Shahrshb, Manqib; al-urr almil, Wasil al-Sha; abars, Mustadrak al-Wasil; Bajal, Musnad; and other sources). 152

infallible Prophet and Immsto meet, that it is more important to defer the actual judgment to God. This approach places the emphasis on legal truth over factual truth and leads to a cautionary stance against udd imposition in all but the clearest of cases that have no mitigating factors. In Sh and Sunn law, Al and Muammad have assumed the same position with the same orientation to criminal cases: both are exemplars of justice, characterized by harsh legislation but lenient application. (Recall Als reluctance in the above cases mirrored by the Prophets reluctance in the Case of Miz; and observe the parallels between the case of the alleged rapist, presided over by the Prophet, and that of the alleged murderer, presided over by Al.) In underscoring these tendencies, these records of Als criminal law judgments thus not only present him as an exemplar of justice, but also claim the moral high ground on two fronts. They at once made fidelity to the law paramount by outlining the harsh treatment of those who would offend the moral values that God set out to promote, and expressed extreme moral anxiety at taking a lifethe highest of valueswithout clear authority or divine sanction to do so. udd-avoidance seems to come from death-is-different jurisprudence that calls on jurists to preside over questions of life and death in a way that considers all possible doubts and ambiguities that may call into question the appropriateness of the death penalty. The result: a juridical policy in which judges are to actively seek those doubts when faced with a death penalty case, usually one involving adultery, and more often than not, this results in add avoidance. It is a jurisprudence of doubt that claims for the jurist wide jurisdiction over criminal law matters, only to require that the accused be dealt with flexibly.

153

3. Generalizing Death-is-Different: Jurists as Opposition to FairnessDisregarding Overcriminalization In the legal literature, the tendency toward udd avoidancehighlighted most in Als judgmentseventually generalizes beyond the Alid context and beyond the death-is-different jurisprudence. This is evidenced in later legal developments that draw on those earlier contexts to give the udd maxim broader scope in Sunn law and legal theory. A primary case in point is the treatment of criminal law by Ibn Qayyim alJawziyya (d. 751/1350), the illustrious anbal jurist-scholar, in his work of legal theory cum judicial manualal-uruq al-ukmiyya f l-siysa al-shariyya. The work focuses on the role of the judge, and was prompted by a single question: can a judge rule by his judicial acumen (firsa), particularly when the evidence is insufficient by itself to provide a clear decision?144 The entire treatise thus deals with doubt and the jurisprudence of doubt. It represents developed ideas concerning the role and scope of juristic authority over criminal law as it intersects with precisely the area with which the udd maxim is most concerned: shubha, or doubt. In brief, Ibn al-Qayyim emphatically answers yes to the question whether judges should rely on judicial acumen in legal rulings: they can and they should. The centerpiece of his argument is to define just what judicial acumen is. To do that, he focuses on the Prophet and Al as exemplars.145
144 Ibn al-Qayyim, uruq, 3 (fa-qad saalan akh an al-kim aw al-wl yakum bil-firsa wal-qarin allat yahar fh l-aqq wal-istidll bil-amrt wa-l yaqif maa mujarrad awhir al-bayyint wal-iqrr ?).
145 Notably, the discussion of exemplary portrayals with focus on these major figures is in line with a regular practice in the Late Antique/Early Islamic Near East. Peter Brown has described this feature of education and literary writing in the late classical Christian contextnoting his partial indebtedness for the observation to comparative parallels in the Islamic context as adduced by Ernest Gellner and others. See Peter Brown, The Saint as Exemplar in Late Antiquity, Representations 2 (1983): 1-25, 2, 11 (What is

154

In the process, Ibn al-Qayyim illustrates how jurists recount and universalize the theory of udd avoidance based on the death-is-different jurisprudence. He provides a particularly noteworthy treatment because he draws on both the early proto-Sunn and proto-Sh sources looking to the Prophet and Al as exemplars of justice. Other Companions are mentioned, but Al is ever at the center of the discussion, advising Umar, approaching udd rulings, and always being careful of both the moral imperatives of the law and the idea of judicial subservience.146 In elaborating the meaning of judicial acumen, Ibn al-Qayyim devotes a section to the udd maxim, with Al as its chief proponent-exemplar. After quoting the standard formula, avoid criminal punishments in cases of doubt (idra l-udd bil-shubaht), Ibn al-Qayyim references a case where Umar declined to impose the add punishment on a woman accused of fornication at the advice of Alwho noted that the woman likely confessed to the crime only because she did not know it was illegal.147 So Umar avoided imposing the add; and that, Ibn al-Qayyim commented, is the most subtle degree of judicial acumen (min daqq alfirsa).148

truly peculiar about the late classical world is the overwhelming tendency to find what is exemplary in persons rather than in more general entities. [T]he balance towards seeing persons as classics had already been tipped by the intensely personal manner in which the culture of paideia was passed on from generation to generation.) (citing Henri-Irene Marrou, in A History of Education in the Ancient World, tr. G. Lamb (New York, 1956), 96-101, 217-26: describing the Civilization of the Paideia).
146

See, in particular, Ibn al-Qayyim, uruq, 34-97, with pp. 67ff and 82ff quoting from the judgments of Al. The bulk of the remaining discussion draws on familiar Sunn sources.

147 This can refer to the case discussed above in which Umar avoids punishing the mysteriously pregnant woman, see above, pp. 37-39 (two versions), though in those cases, Al is not mentioned per se; it can also refer to any of the numerous cases presented in Qumms Qay, where Al is indeed advising Umar toward lenity. 148

Ibn al-Qayyim, uruq, 82. 155

He proceeds with quotations from the works containing Als judgments recounted above (otherwise common only in Sh sources) along with his own commentary that explains and sometimes qualifies the scope of the udd avoidance allowed.149 About the case where the man was found with a bloody knife in his hand (from Chapter 1), Ibn al-Qayyim comments that it is valid for a judge to let the real offender off if he has secured the agreement of the victims family. This is because, according to anbal law, the right of retaliation can only be voided by the familys pardon. Probably assuming that Al pursued this course, Ibn al-Qayyim accordingly declares that there is a strong basis (wajh qaw) for Als avoidance of the death penalty in this case.150 Commenting on the similar case of the rape victim (recounted above), Ibn alQayyim again highlights the judicial acumen apparent in the idea that the Prophet avoided imposing the add punishment. This case comes from Sunn sources and has the Prophet rather than Al presiding; there is a difference of opinion over what happened and, as such, it is regarded as one of the problematic adths.151 Some canonical adth sources recount that the Prophet stoned the perpetrator,152 while others say that he did not.153 And a main collection excludes the adth altogether,
149 That is, he quotes Ajib al-qa, Aqiyat Al and Qay Alall of which, so far as I can tell, refer to the work Qay Al (which also goes by the other names) of Ibrhm al-Qumm of the mid-3rd/9th century. The quotations match the first narration of the 2003 critical edition of Fris assn Karm. The two published stand-alone editions are: Qumm, Qay Amr al-Muminn Al b. Ab lib, ed. Fris assn Karm (Qum: Muassasat Amr al-Muminn, 1382/[2003]), 88-89, 238 (paraphrased), and idem, Ajib akm Amr al-Muminn, compiled by Musin al-Amn al-mil, ed. Fris assn Karm ([Qum?]: Markaz al-Ghadr lil-Dirst al-Islmiyya, 2000).
150 151 152 153

Ibn al-Qayyim, uruq, 89. Ibid. (min mushkilt al-adth). That is, Tirmidh. Ibn al-Qayyim, uruq, 86.

That is, Amad b. anbal (d. 241/855), Bukhr (d. 256/870), Ab Dwd (d. 275/889). See Ibn alQayyim, uruq, 86. The story is also quoted in Nas. Ibid., 84. 156

likely because of this confusion.154 Ibn al-Qayyim is fairly certain that the Prophet did not stone the perpetrator here. All cases in which the Prophet purportedly ordered stoning are known and limited to five cases, he says, and this is not one of them.155 Instead, Ibn al-Qayyim concludes that the person reporting the story was mistaken; the narrator likely added the bit about stoning based on the custom of his own time and/or his confusion about whether the Prophet accepted the initial request of the Companions to stone the man. He may even have conflated two separate storiesthis one and one of the cases in which the reports note that the Prophet actually did sentence someone to stoning.156 Most telling about this discussion for our purposes concerns a factor that Ibn alQayyim does not mention explicitly, but alludes to in recounting this story in the section on the udd maxim as an example of superior judicial acumen: the Prophet certainly regarded as possessing the superior judicial acumen displayed by Al in the prior case (in fact, much more so in Sunn and Sh regard alike)is guided by the policy of avoiding udd punishments, at least in death cases. This policy, Ibn alQayyim seems to be saying, helps us resolve debates over what happened historically. In this case, just as in the case of Miz, the Prophet must have been operating on the knowledge that the perpetrator had repented, whichin the sounder of two anbal opinionswould remove add liability. Moreover, there is nothing in that ruling that
154 Ibn al-Qayyim notes that the adths chain (isnd) met the criteria of authenticity for Muslim, but was likely excluded because the content (matn) was so questionable (fh iirb). Ibid., 86. Ibid., 87 (he says that there were six individuals, but only lists five: Miz, the Ghmid woman, the Yemeni woman involving the house servant (asf), and the two Jews who came to the Prophet requesting punishment for adultery). For a longer list, see Ja, Akm al-Qurn, 2:107, 3:256-58, 264 (listing ten reports and one or two additional instances validating the practice: the five above plus (1) the adth of Jbir reporting that the Prophet stoned an unnamed man and (2) a report of the stoning of Shura alHamadniyya, presided over by Al).
156 155

Ibn al-Qayyim, uruq, 87. 157

contradicts any basic Islamic legal principles (ul al-shar).157 To the contrary, the maxim then trumps or resolves legal-historical debates by providing a rule-of-thumb that we can be fairly sure was followed in the past and, as precedent, should be followed in the future. Importantly, for Ibn al-Qayyim, doubt functions as the determinative factor in criminal sentencing even beyond the death context. It is not that the Prophet and his Companions always required absolute certainty in the form of witness testimony or confession to prove a criminal violation. To be sure, those forms of evidence were preferred. But the early authorities had held that circumstantial evidence could warrant add liability, such as pregnancy as indicative of zin or the scent of alcohol as evidence of wine-drinking. Yet, no final sanctionwhether death (as in the adultery case) or corporal punishment (as in the wine-drinking case)is due until and unless it can be established that there are no mitigating doubts.158 Even after a judge has sentenced an accused woman to stoning on the basis of quadruple testimony, for example, if it becomes apparent that she is a virgin or that the witnesses are untrustworthy, add liability is removed. [The judge then] is to avoid the add punishment [in such scenarios] even if he has ruled that it otherwise applies.159 Thus, Ibn al-Qayyim sees the udd maxim (albeit not in standard form) as a central maxim of criminal law.160 For him, the law and the superior judicial acumen
157 Ibid., 88.
158

Elsewhere, he discusses theft as another area of udd avoidance in cases of famine. See Ibn alQayyim, Ilm, 3:15 (maa arrat al-mutj). Ibn al-Qayyim, uruq, 89 (fa-inna l-add yudra anh wa-law akama bih).

159 160

As noted in Chapter 1, he elsewhere quotes the maxim in the form that punishments [rather than the fixed punishments that form udd laws] are to be avoided in cases of doubt or ambiguity. Ibn alQayyim, Ilm, 1:104 (al-uqbt tudra bil-shubaht). 158

required in applying the law obligate udd-avoidance in certain situations like the ones enumerated here. He holds that the issue of when a judge may recognize addaverting doubts either follows prior precedent or is triggered by a judges discretion concerning factors like repentance (tawba), necessity (arra), and the public interest (malaa).161 Like other anbals (some more so than others),162 Ibn al-Qayyim places restrictions on the operation of the udd maxim.163 But the relevant point here is that he regards it as central to criminal jurisprudence and has extended udd avoidance to death and non-death cases alike. The other mainstream Sunn and Sh schools do as well.164 As detailed in the next chapter, they apply the maxim to all types of criminal law: crimes that warrant the death penalty (adultery, rape, murder, male sodomy)165 and crimes that do not

161 Ibid., 3:11, 13-15. For further discussion, see Chapter 1, notes 106-107 and accompanying text.
162 163

See discussion in Chapter 5.

Accordingly, he criticizes the other Sunn schoolsanafs, Mliks and Shfisfor applying the maxim expansively at the first sign of potential doubt and without a basis in text or precedent. See Ibn alQayyim, uruq, 1:314-15.

164

The hirs, on the other hand, reject the maxim, as do Akhbr Shs. For discussions, see Chapter 2, Section II.C, and Chapter 5.

For the sex crimes listed here, as outlined in later legal literature, a condition is often in, which is typically equated with marriage but encompasses much more. In Sh law, for example, in requires that a husband and wife be both married and available to one another. (Thus, a married man who is imprisoned will not be deemed to meet the conditions for in, as demonstrated in Als case above, note 131 and accompanying text (Appendix, Case no. 24).) In addition, male sodomy is not always categorized as an independent add crime warranting death. The dominant Shfi opinion regards acts of male sodomy acts as zin rather than as separate crimes, and only a married person convicted of male sodomy is thus liable to be executed (though a minority opinion regards any act of male sodomy as a separate crime and holds that the person or couple found guilty of it are liable for the death penalty). See Ab mid al-Ghazl, al-Was f l-madhhab, ed. Amad Mamd Ibrhm and Muammad Muammad Tmir ([Cairo?]: Dr al-Salm, 1997), 440-41. Mliks categorize malebut not female sodomy under the rubric of zin. See Ibn Abd al-Barr, al-Kf f fiqh ahl al-Madna al-Mlik (Beirut: Dr alKutub al-Ilmiyya, 2002?), 2:1069, 1073. And one of the two anaf opinions (that of Ab anfa) maintains the stance that male sodomy is not a add crime while another opinion (that of Ab Ysuf and Shaybn) holds that it is. See Qudr, Tajrd, 11:5910-16 (presenting and adopting the former opinion); Ibn Nujaym, al-Bar al-riq, 5:17 (presenting both opinions, and adopting the latter). 159

165

(theft, wine-drinking, defamation, and a host of other less clearly specified crimes carrying discretionary penalties). * * *

Ibn al-Qayyims work was of particular interest here because it represents developed ideas concerning the role and scope of juristic authority in criminal law in what is regarded as the most conservative school of Sunn law,166 but draws widely on interpretive schemes of all schools of Islamic law. That is, where one would expect conservative Sunn law to be anti-udd maxim and anti-Sh (as was, for example, his teacher Ibn Taymiyya), Ibn al-Qayyim surprises. Not only does he include records of Als judgments from the Sh community in his examples, but he also extends the principle of udd avoidance beyond the death context. He casts his net wide in order to home in on the best models of judicial acumen, whichfor the reasons noted abovehappened to have been recorded in the historical reports of judgments rendered by the Prophet and Al as exemplars. add-avoidance, standing at the center of the criminal law jurisprudence of both, is thus a central marker of high-level judicial acumen; and it extends beyond death according to all schools that accept the udd maxim in some form, even this most conservative school of anbalism. * * *

As constructed by the jurists and settled in this compromise, the preceding sets of cases are mutually reinforcing. At first blush, it seems that a doctrine of udd avoidance favors willfully turning a blind eye to and even validating indiscretions. One
166 The schools so-called conservatism relates to the limits its adherents attempt to place on the exercise of juridical or judicial discretion. See, e.g., Majid Khadduri, Nature and Sources of Islamic Law, George Washington Law Review, 22 (1953): 3-23, 18. 160

reason offered was to accommodate social hierarchies. But if these were the motivating forces of the political elite in the early period, they seem not to have been so for the jurists. Rather, the legal literature depicts the Prophet as at pains to argue against intercession and special treatment on the basis of status in the Case of the Makhzm Thief. More generally, in the accounts analyzed thus far, the Prophet, Umar, and Al are as intent on avoiding udd imposition for the low-class Yemeni woman and for a common thief as they are for anyone else. Thus, initially, at least, these traditions were quite far from being in favor of privileging the upper class or any other community member with getting off scot-free from crimes. On a closer look, the udd maxim, implicitly, and the modified aql saying (with the udd exception), explicitly, communicate a general rule of mandatory udd imposition. These sayings emphatically affirm an orientation toward udd imposition once a criminal accusation is brought before the court and proved. These conditions suggest that the jurists are concerned with the public and political realms, taking courts to be the epitome of a public forum. There, the rule of law, the authority of the ruler, and issues of public morality are all implicated in plain view. What does this mean for udd jurisprudence? C. A Mixed Bag: Public Virtue, Private Vice In addition to the competing tendencies toward udd enforcement and udd avoidance, a third line of cases draws a line between private and public, distinguishing between the first two categories on that basis. As intimated in the Alid judgments, this line encouraged people to conceal vice so as not to raise the question of udd enforcement in the public space. The aim was multivalent, including both social-

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institutional and spiritual-moral concerns. The result for criminal law theory was to limit add liability to public offenses and thus to turn publicity itself into an element of criminal liability. Some examples will illustrate the point. 1. Privatizing Vice To return to the Case of the Drunken Orphan, aside from the ruling of add liability, there were other dicta at play. Even as Ibn Masd observed that the law required him to impose the sanction for drunkenness, he also noted that the Prophet gave the following advice, encouraging people not to bring udd matters to the courts: Do not be helpers to Satan on behalf of your brother; surely it is improper for the imm, when a add crime is raised to him, to do anything but impose [the add]; surely God is [quick to] pardon, and loves pardon, so pardon and overlook [the faults of others]! Do you not wish for God to forgive you? For God is most forgiving, most merciful.167 The sources report the Prophet and other early authorities emphasizing this sentiment over and over again. In fact, it was so oft-repeated that it can easily be said to have been a widely diffused idea in their timeover and above the hierarchical aql sentimentthat people should conceal their own faults and the faults of others. This was an expression of an early Islamic notion of privacy, which appeared first in Qurnic verses and prophetic adths prohibiting spying, regulating the entry and exit of homes, and encouraging Muslims to cover the faults of their wrongdoing brethren.168

167 Al-kim al-Naysbr, Mustadrak, 4:24 (noting that he deems this adth authentic even though Bukhr and Muslim did not include it in their collections).
168 See Cook, Commanding Right, 80-82, 100, 380. For the Qurnic verses, see Qurn, 49:12 (prohibiting spying: tajassus), 2:189, 24:27 (on entering the home).

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It was also an expression of a value that jurists elaborated considerably to the point that it became central in matters of criminal law.169 Another incident involves a case of theft in the presence of Ibn Abbs and other Companions. While a group was traveling and passing by the valley of Muzdalifa (a stopping-point near Min and Mecca on the ajj pilgrimage), a thief came by and stole a leather bag belonging to Ammr. Along with Ibn Abbs and Zubayr, Ammr pursued the thief until they cornered him against a wall. They reclaimed the bag but let the thief go. In one narration, Ammr said, that by doing so, I am overlooking his crime so that God will overlook mine.170 In another version, Ikrima tells the story and criticizes the others for releasing the thief.171 Ibn Abbs retorted, You have no compassion. If it were you, you would be happy to be released!172 In a similar vein, Ab Bakr reportedly said that if he were arrested for winedrinking or theft, he would hope that God would overlook [his crime] (yasturah).173 He was suggesting that he would do the same for anyone he arrested drinking or stealing. And a series of traditions announced that there was spiritual reward in concealing the faults of others (satr). The concealment impetus is well-recounted in the following anecdote about Uqba b. mir al-Juhan (d. 58/677-8), a Companion who settled in Egypt and was Muwiyas governor there in 44-7/665-7:174
169 For additional examples, sometimes involving competing interests that effect whether to divulge the wrongdoing, see Cook, Commanding Right, 80-82, 100.
170 171 172

Ibn Ab Shayba, Muannaf, 9:282-83 (astur alayh laalla Allh an yastur alayya). Ibid., 9:282 (bisa-m anatum na khallaytum sablah).

Ibid. (l umma lak! amm law kunta anta, la-sarraka an yukhall sabluk). I have joined the two adths as they seem to refer to the same incident with different detailsboth told through different chains by Ikrima.
173 174

Ibid., 9:283 (literally: cover his crime (la-ababtu an yasturah Allh)). Cook, Commanding Right, 81. 163

His secretary, Dukhayn al-ajr, explained to him that he had neighbours who drank wine, and proposed to summon the police (shura) to arrest them. Uqba told him not to do this, but rather to counsel and threaten them (verbally). He did so, but to no effect; so he again proposed to call the police. Uqba once more told him not to, and quoted a tradition he had heard from the Prophet: Whoever keeps hidden what would disgrace a believer (man satara muminan), it is as though he had restored a buried baby girl (mawda) to life from her tomb.175 With such anecdotes, jurists of the later periods encouraged community members to be discreet with criminal offenses, almost as if to avoid prosecution. They frequently expressed it through another maxim-cum-adth that, like the aql saying, cautioned people to conceal faults. The Prophet instructs: Overlook (tafaw) [wrongdoings] that occur amongst you [privately], before they are brought [to my attention], for any add matter that reaches me [for adjudication] requires imposition of the punishment.176 And Al expressed similar sentiments. Recall his exasperated plea to the community after reluctantly deciding that punishment was due in the case of the woman who had confessed her own sexual misconduct: [To] whomever commits a sin, repent to God privately! For [I swear] by God, repentance to God in private is better than destroying oneself and throwing off His concealment [of you]!177 In so saying, he was echoing his instructions to Ashtar when he sent him to govern Egypt: Those people farthest from you and the most despicable of them are the ones most intent on exposing the shortcomings of others. For people [inevitably] have shortcomings, and the ruler is the most appropriate person to cover them (al-wl aaqq man satarah). So do not expose that which is hidden from you,
175 Ibid. (citations omitted) (noting that the traditions makes reference to the pre-Islamic practice of female infanticide (wad). Discussions on privacy and concealment of faults come in the context of an exhaustive survey of the duty to command right and forbid wrong in Islamic thought. For more cases that involve criminal law, see ibid., 80ff and passim.
176

Abd al-Razzq, Muannaf, 10:229, no. 18,937 (Arabic text: tafaw fm baynakum qabla an tatn fa-m balaghan min add fa-qad wajaba); Ab Dwd, 4:133, no. 4376 (with al-udd inserted between tafaw and fm); Nas, Sunan, 8:70, nos. 4885, 4886. See also Bayhaq, Sunan, 8:331, no. 17,389; abarn, al-Mujam al-awsa, 6:210, no. 6211; al-kim al-Naysbr, Mustadrak, 4:424, no. 8156. Qumm, Qay, 80, 85-87; cf. above, note 143 and accompanying text. 164

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and guard [the peoples] privacy to the extent possible (wa-stur al-awra m staat); and God will guard that which you wish kept private from your subjects. Overlook anything that is not [already] apparent to you. And do not be quick to believe the backbiting informant [who tells you about peoples faults], for [such] informants are surely treacherous, even if they resemble [sincere] advisors.178 By emphasizing personal culpability and concealment, jurists were attempting to stress the spiritual-moral element of udd violations on the individual and private levels. Repentance was always an option so long as offenders did not publicize their crimes. And even once they did, there was a willingness to entertain claims or even slight indications of repentance after sentencing, as expressed through earlier precedents. The Case of Miz is typical of situations where individuals seem unaware of the full contours of the law but demand punishment for violating it as a means of spiritual purification. That the Prophet rebuked the community for carrying out the sentence that he reportedly imposed not only indicates an orientation to avoidance through allowing repentance at any stage, but it also emphasizes the role of the juristic interpretations of the law rather than individual perceptions of it. Theirs was an institutional concern with interpreting udd laws out of fidelity to the text of the law against law-disregarding tendencies and pressures from the political elite. Out of conviction that the law had to be protected from excessive and arbitrary uses of coercive force by the repressive state apparatus, they created a private sphere as distinct from a public one in areas of criminal law.179
178 Al-Sharf al-Ra, Nahj, letter no. 53. The version by Ibn Shuba also includes the udd maxim though as noted in Chapter 1, this source is of dubious provenance. See Ibn Shuba, Tuaf al-uql, 126-49, p. 128 (Accept excuses, and avoid udd sanctions in cases of doubts or ambiguities: wa-dra al-udd bilshubaht.).
179 See Lange, Justice, Punishment, 248 (noting that the attitudes and juristic regulations governed both udd and discretionary laws (tazr) typically thought of as being in the exclusive purview of the state).

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2. Delineating Public The advice to overlook or conceal crimes as expressed in the tafaw and satr traditions cut both ways. On the one hand, the statements presented more egalitarian versions of the aql saying and were thus more acceptable to juristic sensibilities in criminal law; they encouraged people to overlook each others faults and misdemeanors without reference to status hierarchies while matters remained between private parties.180 The jurists could thus appeal to the tafaw maxim (rather than the aql saying, which probably existed side-by-side) to capture the egalitarian spirit of the Qurn that had been neglected in their time. They could also use the satr tradition to emphasize individual aspects of morality, encouraging private repentance between the individual and God. On the other hand, the tafaw maxim was an announcement that a rule of mandatory udd sentencing applied to any add violation brought to the court, so long as it was proved. In some respects, the two tendencies toward udd imposition and udd avoidance converged in the tafaw and satr policies: overlook and conceal faults amongst yourselves, thereby avoiding udd sanctions, but once the matter is brought to court and the crime established, opportunities for udd avoidance diminish and imposition becomes mandatory. In appealing to these directives, jurists were attempting to balance between the imposition and aversion tendencies, in part on claims of a moral theory of udd laws, but also in an attempt to mediate and mitigate state involvement in criminal law on
180 Unlike the aql saying, which had shades of privileging those of high status, this saying was egalitarian in import; it mandated imposition of udd sanctions across the board when wrongdoing traversed beyond the private sphere. The aql saying and the tafaw saying mirror each other in terms of general import, circulation, and usage, both typically appearing together in the adth literature under a general heading of an exhortation to cover others faults (satr). Like the aql saying, the tafaw saying appears only in Ab Dwd and Nas, and has a singularly ijz chain. See Chapter 1, note 60 and accompanying text. 166

authoritative grounds. To that end, they elaborated the division between public and private through a language of Gods rights versus private rights that accommodated both moral-spiritual concerns and social-political realities surrounding criminal law. Jurists initially contrasted a conception of udd laws as Gods rights (uqq Allh) with other laws, deemed individual (or human) rights (uqq al-ns). Jurists of the first three centuries understood these concepts in theological terms, which generally viewed uqq as legal duties, in this case, of humans to follow divine law.181 That is, as we have seen in the uqq tradition that gave form to the jurists concern with judicial subservience,182 the sentiment was that God has a right to be worshipped; individuals who fulfill their duties of worship have a corresponding right not to be
181 uqq (s. aqq) has a sense of expectations, entitlements, or claims due to say, a lender, from the one obliged to satisfy an obligation, as the debtor. E.g., Qarf, Furq, 1:169 (defining aqq as an entitlement, meaning any right or interest that one person or entity can claim against another); Ibn Nujaym, al-Bar al-riq, 6:148 (similar: aqq as m yastaiqquh al-rajul). Accordingly, many scholars equate aqq with ukm, which can mean a legal ruling of obligation. E.g., Shib, Muwfaqt, 2:253-55 (specifically equating uqq Allh with udd laws as fixed, mandatory, legal obligations); al-Mawsa al-fiqhiyya, art. aqq (Kuwait: Wizrat al-Awqf wal-Shun al-Islmiyya, 1987), vol. 16 (generally equating aqq with ukm). Other scholars clarify that the aqq is not the ukm itself, but rather the subject of the ukm (makm bih or makm fh). E.g., Wahba al-Zuayl, al-Was f ul al-fiqh al-islm, 36-37 note 1 (Damascus: Mabaat Jmiat Dimashq, 1965) (explaining that, because a ukm is actually the result of a divine command, the use of ukm to mean the resulting ruling [wujb, which confers or creates a claim, aqq] is figurative); Muammad Bqir al-adr, Durs f ilm al-ul (Qom: Majma al-Fikr al-Islm, 1419/[1998]), 1:161-62 (same) (English trans., Mottahedeh, Lessons in Islamic Jurisprudence (Oxford: Oneworld, 2003)). The matter was far from simple; jurists devoted entire treatises to detailing the distinctions between aqq and ukm, see Muammad Taq b. asan al-Mudarris al-Ifahn, Risla f l-farq bayn al-aqq wal-ukm, in Rasil al-taqawiyya f l-masil al-fiqhiyya ([Tehran: s.n.], 1363/[1943-4]); Bar alUlm, Risla f l-farq bayn al-aqq wal-ukm, in his Bulghat al-faqh ([Tehran?]: s.n., 1329/[1911-2]); see also al-Hd al-ihrn, Risla f l-farq bayn al-aqq wal-ukm, Ms. Majlis nos. 1950/3, 2753/5 (listed in Modarressi, Introduction to Sh Law, 118). For further discussion of uqq Allh and uqq al-ibd, see Eds., art. u, pl. of a, EI2, 3:551; M. Hoexter, uqq Allh and uqq al-Ibd as Reflected in the Waqf Institution, Jerusalem Studies in Arabic and Islam 19 (1995): 133, 134; Baber Johansen, Sacred and Religious Elements in Hanafite LawFunction and Limits of the Absolute Character of Government Authority, in Islam et politique au Maghreb, ed. Ernest Gellner, Abdallah Hammoudi, and Jean-Claude Vatin, (Paris: Editions du Centre national de la recherche scientifique, 1981), 283; Anver Emon, uqq Allh and uqq al-Ibd: A Legal Heuristic for a Natural Rights Regime, Journal of Islamic Law and Society 13, 3 (2006), 32591.
182

See above, note 9 and accompanying text. 167

punished. In this vein, they concluded that udd laws represent Gods rights in the sense that they are rules of obligation legislated by God for which obedience is due.183 As it concerns the political authorities, this notion allowed the jurists to advance a conception of udd that requires individuals and political authorities alike to obey and implement udd laws as obligatory acts of worship. That is, individuals are to avoid committing udd offenses, and political authorities are obliged to punish those who commit them. Only in this way would Muslim societies give shape to the moral order that God legislated through the divine law. This, at least, is the theological notion of udd laws as moral obligation.184 Over time, jurists elaborated a more sophisticated notion in which they took the Gods rights/individual rights dichotomy to refer to the public-versus-private nature of the interest offended by commission of a crime. udd crimes violate Gods rights, they argued, in the sense of offending against public morality.185
183 Several scholars observe that udd impositions are obligatory because they fall within the scope of uqq Allh. E.g., Marghnn, Hidya (Cairo: Muammad Al ubay, 1966), 2:381; Zayla, Tabyn, 3:539; Ayn, Binya, 6:190; Wanshars, Uddat al-burq f jam m f l-madhhab min al-jum wal-furq, ed. amza Ab Fris (Beirut: Dr al-Gharb al-Islm, 1990), 671; Al al-Dn Muammad b. Al al-askaf, al-Durr almukhtr (Cairo, n.d.), 1:425; Ibn bidn, Radd al-mutr al l-Durr al-mukhtr, ed. dil Amad Abd alMawjd and Al Muammad Muawwa (Beirut: Dr al-Kutub al-Ilmiyya, 1998), 14:400.
184

For discussions of individual and government duties with respect to criminal law, see Mward, alAkm al-sulniyya, 250 (including enforcement of udd laws in a short list of ten public duties that the executive authority of the state must fulfill); cf. Ab Yal, al-Akm al-sulniyya, 27 (listing udd laws under the category of preservation of religious or moral order (dn), as the first of ten requirements that the executive must uphold). For further discussion of both, see Chapter 4.

185 See the sources listed above in note 183 (which often reflect both theological and legal notions of uqq Allh). See Hoexter, uqq Allh, 19 (uqq Allh refers to the rights of the Islamic community and religion and their claims upon the individual.); Johansen, Sacred and Contingent, 281, 302 (arguing that anafs established the uqq Allh-uqq al-ibd distinction to account for political justice in the name of God and to alleviate tensions between the private and individualistic character of Hanafite law and the public interest). For alternative views, see Hina Azam, Sexual Violence in Mlik Legal Ideology: From Discursive Foundations to Classical Articulation (unpublished PhD dissertation, Duke University, 2007), 182232 (arguing that uqq Allh reflect an early theocentric conception of coerced zin as a moral transgression that contrasted with a later conception of a propriety ethics); Emon, Natural Rights Regime, 325-91 (positing that Muslim jurists invented the doctrine of uqq Allh as an interpretive mechanism used to create and distribute rights, duties, and public commitments through natural law

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Recall that Dwd al-hir and other jurists had reduced Islamic law to five core public values that they maintain its rules are intended to promote: the preservation of life, religion, sanity (or intellect), lineage, and property (listed in order of importance). They mapped these values onto criminal law rules as the prime example and method of promoting these values. On this view, the laws of retaliation help preserve life by limiting opportunities for vigilante bloodshed and blood feuds of the type that occurred in the pre-Islamic period. Apostasy laws help maintain Islamic religious identity, at a time when conversion entailed a change in political loyalty. Prohibitions on intoxicants helped preserve the sanity or intellect (also here: dignity) of individuals and public space. Rules against sex crimes helped preserve ties of lineage and honorwhich the sources reveal to have been extremely important in medieval Arab societies. And the laws against theft, fraud, highway robbery and the like promote the sanctity of private property.186 With these interests in mind, jurists convey a sense that udd crimes go far beyond offenses against individual victims; they also infringe on the sense of security and preservation of Islamic laws five core values. Sexual misconduct is a good example. Once it reached the courts, jurists treated adultery less as an offense against the faithful spousei.e., a violation of a private interest, in which case it should be punished absolutely in order to vindicate the claims of another individualthan as an offense against the notion of the inadvisability of open infidelity in a system where marriage is the primary way to render sexual relations liciti.e., a violation of the
reasoning to justify rules that had no basis in the Qurn or Sunna). That their rulings espoused a developed reading is not to say that later jurists dropped the earlier theological notion; they simply added onto it. See, e.g., Qarf, Furq, 1:269-70 (citing the uqq tradition).
186

See above, note 17 and accompanying text. 169

public interest, which triggered the cautious udd jurisprudence of doubt when there was no clear victim. The gravity of the crime and its high stakes still made jurists tread cautiously, as reflected in their narrow construction of udd offenses and the heightened procedures required to secure a conviction.187 They instituted a host of additional evidentiary safeguards as well, including rules restricting the acceptance of confessions, disallowing verdicts based on judicial notice, and limiting the use of circumstantial evidence.188 Moreover, in line with the tafaw and satr traditions, jurists encouraged sex offenders not to disclose their illicit affairs.189 In the process, they constructed an elaborate law of privacy designed to prevent the political authorities from prosecuting anything but brazen, public criminal acts.190 In other words, through combining doubt jurisprudence with a robust privacy doctrine, jurists made udd crimes like adultery punishable only when they were so
187 We earlier discussed some of the heightened procedures to prove zin offenses. Jurists further interpreted these texts to severely circumscribe means of valid prosecution in other ways. Some limited the definition of fornication to the literal terms of a sex act between a man and a woman. Some also determined that judges may only impose punishment with non-coerced, multiple, sworn confessions or testimony from four witnesses to the act of penetration, that is, uniform testimony as to the details of the time, manner, and place of the act. See, e.g., Ab Ibrhm Isml b. Yay al-Muzan, Mukhtaar, ed. usayn Abd al-amd Nl (Beirut: Dr al-Kutub al-Ilmiyya, 1993), 9:276; Ibn Bbawayh, Hidya, in YF, ed., Al Aghar Murwrd (Beirut: Dr al-Turth and al-Dr al-Islmiyya, 1990), 23: 19; Marghnn, Hidya, 4:129.
188

E.g., Ibn Idrs al-ill, Sarir, 3:537, 4:432 (noting exceptions to the Sunn bar on judicial determinations by private knowledge for offenses against uqq Allh); Sarakhs, Mabs, 9:43-106. For basic overviews of criminal procedure, see Peters, Crime and Punishment, 8-19; Maman, Falsafat altashr, 325-76.

189

E.g., Zayla, Tabyn, 3:341-42 (arguing that the law encourages zin to be covered [kept private] since the existence of four witnesses to the act is rare [if not impossible]); Bjr, shiya, 384 (arguing that anyone who commits zin or a related crime should keep it private and repent privately, for whoever publicizes or makes known his sexual transgression incurs [eligibility for] the add punishment).

On privacy doctrines in Islamic law, see Alshech, Private Domestic Sphere, 291-332; Cook, Commanding Right, 80-82. For a useful discussion of how privacy laws played out in sodomy cases, see Seema Saifee, Penumbras, Privacy, and the Death of Morals-Based Legislation: Comparing U.S. Constitutional Law with the Inherent Right of Privacy in Islamic Jurisprudence, Fordham International Law Journal 27 (2003):370 (describing privacy laws that barred the Muslim state from pursuing and prosecuting non-public sex crimes, with comparison to recent change in American law announced by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003)). 170

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public as to meet the most stringent of standards of proof, thereby infringing on the values of public morality that the udd prohibitions aim to protect. Scenarios meeting this conception do not easily yield udd avoidance, and to the contrary, compel imposition, as shown in the Case of the Drunken Orphan. In that case, Ibn Masd imposed the punishment for drunkenness because the matter had become publicnot by the fact that it was or was not done in public space, but by the very fact that it had entered the public domain of the court; moreover, the offense had been proved through uncontested admission, and lack of self-discipline was not a valid excuse for avoiding imposition of the add punishment. Jurists applied similar arguments to the range of udd laws to articulate the public values at stake when any crime was committed, and to make determinations about whether imposition or avoidance was warranted.191 An important counter-example involves juristic treatments of defamation. As a add crime formally, it should properly be counted as one of Gods rights, particularly when defamatory statements were made in the public space. But because of the intensely personal nature of the offense, it implicated individual rights and jurists thus accommodated a right of action or pardon for individualsin contrast to other udd laws. To account for this disparate treatment but to maintain the Gods rightsindividual rights framework, most jurists created and categorized defamation as a case of mixed rights (uqq mushtaraka).192
191 Some later jurists even insisted that prohibitions that offended no clear private interest, so-called victimless crimes like wine-drinking, were not instituted for their own sake or any intrinsic moral value, but primarily for the preservation of public order. E.g., Wanshars, Udda, 683-84 (noting a Mlik view that the law does not prohibit wine-drinking for its own sake, but aims to deter the harms [to the public sphere] that accompany excessive drinking and addictive behavior). Jurists developed this concept by the 5th/11th century to overcome the inconsistency between the private characteristics of defamation and the theory that all udd laws are in the public uqq Allh category. As usual in Islamic law, jurists generated a plurality of opinions about the balance of 171
192

At some remove then from the theological notion of udd laws-as-moralobligation, these developments encapsulated a legal-political notion of udd laws. Inasmuch as, in the latter conception, udd laws represented rules of public morality, jurists attempted to acknowledge the states sphere of jurisdiction over public space but to limit its inevitable encroachments and abuses. Their uniform stand in favour of privacy is reinforced by a marked element of hostility and mistrust directed against the state. It is not out of concern for privacy that [one jurist, for example] refuses to have anything to do with [the caliph] al-Mahds suggestion that they join forces . What we have here is rather a characteristic example of [the jurists] sullenness toward the authoritieshis Staatsverdrossenheit, as van Ess has dubbed it.193 Imposition and avoidance were ever the tendencies requiring balance, and this third sentiment requiring public virtue and overlooking private viceor else permitting state involvementwas the developed manifestation of how the jurists attempted to achieve it. As they sought to limit the reach of the state, the jurists maintained the theological-moral view of udd laws as rules of obligation alongside the legal-political theory of them as expressions of public morality. The udd maxim could accommodate both if udd laws were taken seriously as guides for private behavior
public/Gods rights versus private/individual rights in crimes of defamation in light of the theory of udd laws and also to explain or justify the different legal rulings in each school governing the ability of a private offender to pursue or pardon defamation claims. Shfis categorized defamation as almost exclusively a private offense, and Mliks opined that the private aspects of the act preponderated. See, e.g., Mward, w, at 1:212-13; Ab Bakr b. al-Arab, Akm al-Qurn (Beirut: Dr al-Fikr, n.d.), 3:344. anafs deemed it to be more of an exclusively public crime. See, e.g., Ab Bakr al- Ksn, Badi alani f tartb al-shari, ed. Amad Mukhtr Uthmn ([Cairo]: Zakariyy Al Ysuf, 1968), 9:4212-13. anbals made it exclusively private. See, e.g., Ibn al-Bann, Muqni, 3:1123; Ibn Qudma, Mughn, 12:27778, 378.
193

Cook, Commanding Right, 82 (quoting van Ess, Theologie und Gesellschaft, 1:224) (other citations omitted). 172

and protecting individual interests but, in the public sphere, like courts, viewed cautiously as deterrents meant to champion the five overarching values that they had culled from the sources as binding the state and the public sphere.194 Accordingly, jurists used the maxim to carve out exceptions to the rule of mandatory imposition through doubt jurisprudence designed to attend to the laws moral imperatives and assuage their moral anxieties while recognizing the obligatory nature of udd laws and rhetorically regulating the power of the state. Their jurisprudence held that doubts as to the scope of the law or the evidence raised questions about individual culpability, which in turn raised questions about the validity of punishing an individual whose conduct was only dubiously criminal or who was only dubiously liable. In other words, prosecution in such doubtful cases would run the risk of violating an individuals personal entitlement to be free from harm when not in fact criminally culpable. Jurists then used the udd maxim to bar sanctions when there was ambiguity about which public valuesas uqq Allh had come to meanwere at stake, but operated less expansively when private interests (uqq al-ns) were involved. In other words, when they placed the more specific private interest against the non-specific public interest, they typically concluded that the private interest had the upper hand. The rationales that jurists later elaborated for this position are recounted at length elsewhere. For now, suffice it to present a few statements in this regard. One scholar explained that the udd maxim takes precedence because the greater interest (of
194 See, e.g., Shfi, Umm (1993), 8:288 (describing two purposes of udd laws as (1) severe punishments designed to deter crime, and (2) spiritual purification or rehabilitation ); Mward, w, 1:99 (udd are punishments by which God deters (zajara bih) people from committing prohibited [acts] and encourages them to follow [His] commands.). 173

the law) is in preservation of life.195 Moreover, he said, udd [sanctions] are harsh, so [may not be] imposed except and unless there is a complete crime established.196 In other words, the value placed on private interests and the high stakes of the udd convictions require udd laws to be construed narrowly.197 The point, jurists said, is not to impose the udd sanctions as much as possible. In fact, an oft-quoted version of the udd maxim says the exact opposite: Avoid imposing udd punishments on Muslims as much as you can; if there is an exculpating cause for [the accused], then release him, as it is better that the Imm make a mistake in pardoning than in punishing.198 Consequently, jurists concluded that the law used the threat of udd sanctions to deter and punish proved criminal offenses, but that the corollary to mandatory udd laws was an equitable usage of the udd maxim in order to uphold the laws public-moral values. All of this suggested that judges should accord primacy to individual interests over public ones when there was no clear threat to the public sphere, and devolve to udd enforcement as a final resort for offenses against public morality. * * *

The caliphs did notand, no doubt, could notassume sweeping religious authority over the law. This was clear from just the few of the famous anecdotes where the state tries unsuccessfully to capture the jurists: the failure of Ibn al-Muqaffas
195 Ibn Abd al-Salm, Qawid, 2:279-80 (giving the example of a marriage of disputed validity).
196 197 198

Ibid. E.g., Wanshars, Udda, 683-84 (fa-wajaba an yatarattab al-add al l-ta al-mulaq).

This is the most common version the maxim in adth works, contained in the collections of Abd alRazzq, Ibn Ab Shayba, Tirmidh, Bayhaq, and Draqun: idra l-udd an al-muslimn m staatum fain kna lahu makhrajan fa-khall sablah fa-inna al-imm an yukhi f l-afw khayr min an yukhi f l-uqba. For details and citations, see Chapter 1, Appendix, Version 2. 174

proposal to place law under the authority of the caliph, the recognition of Ab Ysufs authority as a jurist to articulate matters of public law that bound the caliphs, to name just two. Nor could the jurists exercise sweeping authority over public law, as caliphal authority after the first few caliphs was by and large held by leaders not considered to be scholars with a command of the prophetic message or moral-spiritual authority over the community at large. At the center of these discussions, amongst a short list of other public laws of shared jurisdiction, was criminal law.199 Given their rootedness in foundational texts and the nexus between juristic and political spheres of jurisdiction, udd laws served as a bellwether for the legal system as a whole and the rule of law according to divine will. On a fundamental level, jurists feared that neglect of udd laws would create a society that could not claim to be following Gods law, and moreover, would result in the absence of the rule of law and societal descent into utter chaos.200 The arrangement around which this question settled was one of at first contested and then shared spheres of jurisdiction. In that liminal space, jurists encouraged at least the appearance of public virtue and protections of private vice to avoid the thorny questions of jurisdiction and violence that arose between them and the state authorities whenever it came to public vice. Between the governmental branches and the jurists, the latter aspired to provide a moral check against the government toward keeping it within the confines of the divine lawat least
199 See Mward, al-Akm al-sulniyya, 250 (including enforcement of udd laws in a list of ten public duties that the state authorities must fulfill).
200

This second fear appears starkly in a later period, when it was put to the test. Christian Lange observed that Muslims much preferred the seeming draconian criminal justice system of the Seljuk dynasty to the utter chaos that reigned when those authorities lost power in Khursn for some time beginning in 548/1153 until the Mongol invasion. See Lange, Justice, Punishment, 244-46. 175

rhetorically if not always in fact.201 Despite their continuing attempts to define the law and critique the state, and notwithstanding the states nod to their authority to do just that, the jurists were often at a severe disadvantage against the awesome power and quick action of the state when it came to actually seeing the law on the books come to fruition in society. 3. Defining Doubt Jurists and political rulers championed two different sets of interests surrounding issues of morality and authority over law. Where the latter institutionalized hierarchical norms and sought to maximize their authority over the law and the public sphere, the former sought to curb it. In this vein, we have seen that jurists functioned as the pious opposition to what they perceived as political excesses in criminal law and elite social norms. They opposed the states status-reinforcing under-criminalization by which high-status offenders were absolved from criminal liability. And in the process of elaborating the law, their moral anxieties about imposing the death penalty also led them also to oppose fairness-disregarding overcriminalization. Jurists looked to the Prophet and Al as exemplars of justice and subservience because they needed a udd jurisprudence that was concerned both with the moral imperative to avoid taking life but also to avoid disregarding Gods criminal laws, which themselves underscored Islams core moral values. The tension between the two sets of imperatives and the resulting moral anxieties led to the doubt jurisprudence that required udd enforcement when death cases violations were public, proved with
201 See generally Mward, al-Akm al-sulniyya (delineating the duties of jurists versus the political authoritiesthe former charged with interpreting the law, the latter with enforcing it). 176

certainty, and without mitigating factors to remove criminal liability. This was a tall order. These standards contributed to shaping two central characteristics of Islamic criminal law: (1) that it was an area of shared jurisdiction between the jurists and state authorities and (2) that it was subject to more procedure in forms that appear a lot like the safeguards criminal defendants that arise in death-is-different jurisprudence that tends to avoid capital punishment. Though the initial concerns behind the additional procedures were perhaps more personal and political than concerned with defendants rights per se, the avoidance tendencies in udd jurisprudence spread beyond the capital context to ordinary crimes as expressed in the udd maxim. The maxim at once represented the jurists attempts both to maximize their own authority vis--vis state excess and encroachments on religious law, and to ameliorate tendencies toward udd imposition. In efforts to avoid the tremendous pressure of high-status members of the elite and to ameliorate their own moral anxieties about following the laws moral imperatives and punitive measures, judges appealed to the doctrine of doubt. Shubha focuses on the insufficiency of the evidence, which allows a judge to claimin the face of pressures from the political operativesand to complainin the face of disregard from those same cornersthat their hands were constrained by the law and bound by the facts or lack thereof. Through generalizing death-is-different jurisprudence, they were able to sneak softening principles into the legal canon with a strong argument that they had always been there and that this scheme was intentionally designed that way by the divine Lawgiver. In the end, Islamic criminal law was less about what the text said, and more about how the jurists and the state would proceed when

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confronting situations about which the text did not say very much. Juristic interpretation depended on hermeneutic methodologies developed by the jurists as they navigated socio-political demands and moral-divine ones. Actual application was often harsh and marginally responsive to those concerns as political authorities seemed, to understate the case, less anxious about the moral-legal imperatives occupying the jurists attention. * * *

The meaning and circumstances defining shubha are so far, at best, ambiguous. The udd maxim qualifies the push of udd imposition to deal with cases of shubha specifying that only in those cases should the add be avoided after being brought before the courts. Until now, we have seen instances of shubha in the common law-like way that it arose in the early Islamic context, taken on a case-by-case basis. In subsequent centuriesleading to the rise of legal maxims literature that encapsulated the theory behind the casuistic rulingsjurists elaborated a more robust jurisprudence of doubt by defining shubha and claiming authority over it. How they did so and the diversity of approaches even amongst the jurists pursuing this common broader aim are the subject of the next two chapters.

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APPENDIX

Table of Cases Cited

Summary and Explanatory Note: The following is a list of 25 cases designed to provide an idea of and quick reference point for the types of cases that arose in the developing jurisprudence of doubt amongst early Muslim jurists, as discussed in the text of Chapter 2. These cases fall into three groups: (1) Those reported in literary sources, including historical chronicles, biographical dictionaries (sometimes absorbed in fatw collections), and collections of anecdotes. Most of these cases feature elite judges and high-status offenders citing the udd maxim to avoid punishment. (2) The landmark cases from Sunn adth collections and other legal sources. These fall into two categories: those aimed at udd imposition and those aimed at udd avoidance. The typical policy behind the first group seems to serve the early juristic value of judicial subservience, while the policy behind the second appears to mix moral anxieties, evidentiary concerns, and jurisdictional considerations regarding the public-private divide. (These cases are dubbed landmark because they are central to and repeated in later juristic discussions of criminal law and the jurisprudence of doubt; they are also typical of a broader panoply of cases in the early literature. For a fuller sense of the logic behind the selection of cases, see above, note 66.) (3) Als Judgments hailing from Sh sources. Here, the cases uniformly pursue a path of udd avoidance, typically reflecting moral anxieties with the death penalty and other severe punishments. In all groups, each case has been given a case name where one

is not mentioned in the text; this is for ease of reference for this and subsequent chapters. The chart further offers the brief facts of each case, the judge presiding, the place where the events presumably took place [in brackets where surmised from the likely location of those involved], the add charge, the decision (whether avoidance or imposition) and the legislated add sanction (according to fiqh opinions), the rationales (both stated ones, where available, and presumed ones on the basis of the surrounding context and implications of the statements of the actors in each case), and the sources or types of sources where each case is found. Citations to discussions in the text are also given in the first column; where the case has been discussed more than once, citations to the place where it has been discussed most extensively are in bold.

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I. Literary Sources
Case: Short Name & Facts CASE 1[Case of the Secret Lovers] A young nobleman is accused of theft, having been caught inside the house with clothes belonging to the houses owner. It is later discovered that the young man is seeing the young woman who lives in the house. See Ch. 2, p. 20, note 56. Judge Khlid al-Qasr (d. 126/743), Umayyad governor (and judge) Place Iraq add Charge Zin Decision Avoidance add sanction: 100 lashes flogging for fornication; death by stoning for adultery Sentence: No sentence imposed; instead, the two are married to each other Muammad b. Manr al-Mahd (r. 158-169/775785), Third Abbsid caliph Baghdad Blasphemy Avoidance, then Imposition add sanction: death penalty Sentence: execution, crucifixion over a bridge Rationales Stated rationale: actual innocence of the theft Imputed rationale [Fierro]: avoidance because of high status (both for theft accusation and for the possible zin accusation) Sources One Thousand and One Nights (Alf Layl waLayla) Itld, Nawdir al-khulaf

CASE 2-[Case of the Blaspheming Poet] Abbsid caliph Mahd presides over accusations that the poet li b. Abd al-Qudds (d. 167/783) was a crypto-infidel or masked unbeliever (zindq) accused of making blasphemous statements. See Ch. 2, pp. 19-20. CASE 3-[Case of Royal Indiscretions] Hrn al-Rashd (r. 170-193/786-809) witnesses a member of his household committing zin and calls in Ab Ysuf to adjudicate. See Ch. 1, pp. 15-16, Ch. 2, p. 15.

Stated rationale for avoidance: the udd maxim as a adth Stated rationale for imposition: admissions that the poet would continue to blaspheme Imputed rationale [Fierro]: harshness for low status offender Stated rationale: Insufficient evidence (in Imms knowledge alone) Imputed rationale [Fierro]: lenience for high status offender

Al-Khab alBaghdd, Tarkh Baghdad; Ibn Askir, Tarkh Madnat Dimashq; Ibn Khallikn, Wafayt al-ayn

Ab Ysuf (d. 182/798), Abbsid judge (first chief judge), anaf jurist

Baghdad

Zin

Avoidance add sanction: 100 lashes or stoning Sentence: No punishment mentioned

al-Q alTankh (d. 384/994), Nishwr almuara; Ibn Khallikn (d. 681/1282), Wafayt al-ayn

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Ibn al-Ward (d. 749/1349), Tarkh Ibn alWard Yfi (d. 768/1366-7), Mirt al-jinn CASE 4-[Andalusian Blasphemy Case] Hrn b. abb criticizes Muslims in favor of Christians, for which he is accused of blasphemy. The caliph, Abd al-Ramn II, appeals to his brother, Mlik, and others to adjudicate. See Ch. 1, p. 36, note 78; Ch. 2, pp. 15-18. Mlik b. abb (d. 238/853), Andalusian judge, jurist, jurisconsult Cordoba Blasphemy Avoidance add sanction: death penalty Sentence: No add punishment, but imprisonment Stated rationale: the statement was illadvised, but not a add crime of blasphemy Presumed rationale [Fierro]: lenience for high status offender Khushan (d. 361/971-2 or 371/981), Akhbr alfuqah Q Iy (d. 544/1149), Madrik; idem, Shif [whence Wanshars (d. 915/1508), Miyr] Khushan (d. 361/971-2 or 371/981), Akhbr alfuqah Q Iy (d. 544/1149), Madrik; idem, Shif [whence Wanshars (d. 915/1508), Miyr] Nubh (d. 713/ 1313-4), Marqaba CASE 6[Case of a Drunken Noble I] The Andalusian judge Ibn Ab s Ibn Ab s (d. 339/950), Andalusia Winedrinking 181 Avoidance add sanction: 80 Stated rationale: n/a* Imputed rationale Nubh (d. 713/ 1313-4),

CASE 5-[Case of the Royal Concubines Naughty Nephew] The nephew of the royal concubine Ajab is accused of blasphemy. The caliph [Abd al-Ramn II?] appeals to his brother, Mlik, and others to adjudicate. See Ch. 2, p. 18.

Mlik b. abb (d. 238/853), Andalusian judge, jurist, jurisconsult

Cordoba

Blasphemy

Imposition add sanction: death penalty Sentence: Execution

Stated rationale: n/a Imputed rationale [Fierro]: the concubine was not of high status

spots a young nobleman and poet who is drunk and claims not to know of the Qurnic prohibition of [wine-] drinking but also threatens to revile the judge with negative poetry if he punished him. See Ch. 2, p. 20, note 56.

Andalusian judge, jurist

lashes Sentence: No punishment imposed

[Fierro]: the young man was of high status *But see commentary of Nubh (surmising that the judge could have avoided imposing the punishment on the basis of the young man having given a single confession or because the circumstantial evidence was insufficient to punish). Stated rationale: n/a Imputed rationale [Fierro]: the young man was of high status

Marqaba

CASE 7[Case of a Drunken Noble II] Similar to above scenario. See Ch. 2, p. 20, note 56.

Simja al-Sanhj (d. ca. 1090), Zrid vizier

Ifrqiya [Tunisia]

Winedrinking

Avoidance add sanction: 80 lashes Sentence: No sentence imposed

Ibn al-Khab, Kitb aml alm

II. Landmark Cases: Sunn adth and Law Sources

Imposition
Case: Short Name & Facts CASE 8-Case of the Makhzm Thief A woman of the Makhzm clan in the Qurash tribe steals (or borrows and then denies it), for which Usma b. Zayd, son of the Prophets adopted son, attempts to intervene on behalf. See Ch. 2, pp. 26-27, 63. Judge The Prophet Place [Medina] add Charge Theft Decision Imposition add sanction: hand amputation Sentence: Rationales Stated rationale: equal justice for high and lowstatus offenders Imputed rationale: judicial subservience Sources adth collections, fiqh treatises

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CASE 9-afwns Case A man steals a cloak from afwn b. Umayya on his way to Medina, after the Hijra; after raising the case to the Prophet, afwn attempts to intervene on the mans behalf by saying that he gifts the cloak to the man after sentencing. See Ch. 2, pp. 28-29. CASE 10-[Case of the Yemeni Servant] A house servant (asf) in Yemen is accused of committing zin with the man of the houses wife. See Ch. 2, p. 30, note 80.

The Prophet

[Medina]

Theft

Imposition* add sanction: handamputation *But see Qudr, Tajrd, 11:5986-87 (that the add sanction was avoided).

Stated rationale: unable to change legal facts of the case after adjudication Imputed rationale: judicial subservience

adth collections; fiqh treatises

The Prophet

Yemen, Medina

Zin

Imposition add sanction: 100 lashes for fornication; death by stoning for adultery Sentence: 100 lashes were likely imposed, but no information regarding stoning

State rationale: the appropriate punishment for zin is 100 lashes for the servant, death by stoning for the wife if she confesses Imputed rationale: judicial subservience Stated rationale: qualms against severity does not lift add liability; judicial subservience Imputed rationale: judicial subservience and publicity Stated rationale: n/a Imputed rationale: compassion or status do not lift add liability; judicial subservience; publicity

adth collections; fiqh treatises

CASE 11-Case of the Drunken Orphan A man brought his orphaned nephew to Ibn Masd on an accusationand admissionof wine-drinking. See Ch. 2, pp. 29-31, 65-66, 73. CASE 12-[Case of the Drunken Brother] The caliph Umar b. al-Khabs son takes his brother Abd al-Ramn before the governor-judge of Egypt, Amr b. al- on chargesand presumed admissionof winedrinking. See Ch. 2, p. 31, note 77.

Ibn Masd (d. 32/652-3), Prophetic Companion, judge, jurist

Kufa

Winedrinking

Imposition add sanction: 40 or 80 lashes Sentence: Not mentioned

adth collections; fiqh treatises

Amr b. al- (d. 43/663-4), Governor (and judge) of Egyptian capital at Fus

Egypt, Medina

Winedrinking

Imposition add sanction: 40 or 80 lashes Sentence: Lashes (amount unknown) administered privately by Amr in Egypt, then again publicly by Umar in Medina

adth collections; fiqh treatises

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Avoidance
Case: Short Name & Facts CASE 13-Case of Miz Miz b. Mlik confesses to the Prophet multiple times that he committed zin, knowingly, and was of sound mind when he did so. See Ch. 2, pp. 34-37, 61, 67. Judge The Prophet Place [Medina] add Charge Zin Decision Imposition/ Avoidance add sanction: death by stoning Sentence: Reportedly imposed, though the Prophet said that the people should not have carried out the sentence Umar b. alKhab (d. 23/644), Second caliph [Medina] or Min, and Yemen Zin Avoidance add sanction: 100 lashes or death by stoning Sentence: No punishment imposed; the people are told to feed and clothe her The Prophet [Medina] Zin (rape) Avoidance* add sanction: death by stoning for the rapist Sentence: No punishment imposed on the rapist *But see Ibn alQayyim, uruq, 86 (reporting but 184 Rationales Stated rationale for imposition: criminal elements met Imputed rationale: judicial subservience Stated rationale for avoidance: he may have repented Imputed rationale: moral anxiety with the death penalty Stated rationale for imposition: actual innocence in that she may have been raped; fear of Gods wrath Imputed rationale: moral anxiety with imposing the death penalty adth collections, fiqh treatises Sources adth collections, fiqh treatises

CASE 14-[Case of the Mysterious Pregnancy] A woman comes to Ab Ms alAshar in Yemen, who submits the case Umar b. al-Khab (Version 1) or to Umar b. al-Khab directly (Version 2), acknowledging that she had sex resulting in a pregnancy, but not intentionally and not while not awake. See Ch. 2, pp. 37-38. CASE 15-[Case of Rape in Baghdad] A woman is raped on her way to the mosque, and accuses the wrong person of assailing her; her story is corroborated by bystanders attempting to help her, but denied by the accused; the real perpetrator admits culpability. See Ch. 2, pp. 32, 60.

Stated rationale: repentance Imputed rationale: moral anxiety at death penalty

adth collections, fiqh treatises

rejecting opinions that the add sanction was imposed). CASE 16-[Case of Murder in Medina] A man murders another man for money in Medina; a butcher found near the scene of the crime is arrested and convicted, until the real perpetrator admits culpability. See Ch. 1, pp. 2-4; ch. 2, pp. 39, 60. CASE 17-[Case of Theft in Muzdalifa] A man steals a bag from the Companion Ammr, for which Ibn Abbs and Zubayr chase him to retrieve the bag but then release him (Version 1), which Ikrima criticizes (Version 2). See Ch. 2, p. 66. CASE 18-[Case of Drunkenness in Medina] The first Umayyad caliph Muwiyas governor-judge in Egypt Uqba b. mir (d. 58/677-8) is brought a complaint by his secretary, Dukhayn al-ajr of drinking neighbors. See Ch. 2, p. 67, note 164 (citing Cook, Commanding Right, 81: citing further cases). Al b. Ab lib (d. 40/661), Fourth caliph, First Imm Medina Murder Avoidance add [here: qi] sanction: death in retaliation for the perpetrators act (qi) Sentence: No punishment imposed Ibn Abbs (d. 68/687), Prophetic Companion, jurist [Also: Ammr, Zubayr, Ikrima?] ijz [Mecca?] Theft Avoidance add sanction: handamputation Sentence: No punishment imposed Stated rationale: value of concealment (Ab Bakr notes he would do similarly), compassion Imputed rationale: publicity element, moral anxiety Stated rationale: value of concealment (based on a adth) Imputed rationale: publicity element, moral anxiety adth collections, fiqh treatises Stated rationale: n/a Imputed rationale: moral anxiety at death penalty Ibrhm alQumm (d. mid3rd/9th c.), Qay Al [whence Ibn alQayyim (d. 751/1350), uruq] adth collections, fiqh treatises

Uqba b. mir (d. 58/677-8), Governor and judge in Egypt

Egypt

Winedrinking

Avoidance add sanction: 80 lashes Sentence: No punishment imposed; Uqba advises Dukhayn not to call the police and to admonish the offenders verbally

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III. Als Judgments [Sh Sources]

Case: Short Name & Facts CASE 19-[Case of the Absent Husband] A woman remarries after her husband has been absent for two years, and has a child with the second man; the first husband returns and accuses her of committing zin. See Ch. 2, pp. 4647. Umar Al Judge Imposition Avoidance Place [Medina] add Charge Zin Decision Avoidance add sanction: death by stoning Sentence: No punishment of stoning imposed; the child stays with the wife and first husbandwho eventually claims paternity Umar Al Imposition Avoidance [Medina] Zin Avoidance add sanction: 100 lashes or death by stoning Sentence: No punishment imposed; the child stays with the slave driver, who has paternity Umar Al Imposition Avoidance Medina Zin Avoidance add sanction: 100 lashes or death by stoning Sentence: No punishment imposed Rationales Stated rationale for imposition: criminal elements met Imputed rationale: judicial subservience Stated rationale for avoidance: n/a? Imputed rationale: moral anxiety with the death penalty Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: n/a Imputed rationale: moral anxiety with the death penalty [or lashes] Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: insufficient evidence [fear of false testimony] Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections Sources Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections

CASE 20-[Case of the Absent SlaveOwner] A slave driver has sex with a slave woman in his care while the masterowner is absent (traveling); the owner returns and accuses the slave driver of zin. See Ch. 2, p. 47, note 108.

CASE 21-[Case of a Framed Rape] A woman frames a man whom she wants to either attract or punish if he will not give her attention; she accuses him of rape. See Ch. 2, p. 49.

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Imputed rationale: moral anxiety with the death penalty [or lashes] CASE 22-[Case of The Orphan and the Jealous Wife] A wife fears that her traveling husband will be attracted to their maturing orphan daughter when he returns; she enlists her neighbors help in framing the orphan by puncturing her hymen and then accusing her of having committed zin. See Ch. 1, pp. 49-50, Ch. 2, pp. 53-54. Umar Al Imposition Avoidance [Medina] Zin Avoidance add sanction: 100 lashes or death by stoning Sentence: No punishment imposed on the orphan; wife is sentenced to the add punishment for defamation [80 lashes], payment of 400 silver pieces [for puncturing the orphans hymen, which was considered to have taken her virginity] Al [Umar in Sunn sources] Kufa or Medina Zin [rather than theft] Avoidance add sanction: 100 lashes or death by stoning for zin [depending on whether construed as fornication or adultery]; 80 lashes for defamation Sentence: No punishment for the husband (all Versions); No punishment for the wife (Version 1) or wife is sentenced to the punishment for 187 Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: evidentiary infirmity Imputed rationale: moral anxiety with the death penalty Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections

CASE 23-[Case of Sex with a Wifes Slavewoman ] A wife accuses her husband of having intimate relations with a slavewoman belonging to her, against which he counters he had her permission. Al tells her of the consequences stoning for the husband or the add punishment for defamation for the wife if she is lying (Version 1) or sentences the man to death upon which the wife perjures herself (Version 2). [In Version 3, Umar tells the wife that he will stone the man for adultery, prompting the woman to perjure herself.] See Ch. 1, pp. 52-53, Ch. 2,

Stated rationale: [constructed] false testimony/perjury Imputed rationale: moral anxiety with the death penalty; severity with evidentiary infirmities

Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections Mlik (d. 179/795), Muwaa (citing Umar as judge who avoided)

pp. 52-53 (Version 3). CASE 24-[Case of Sex in Prison] A married man commits zin in prison; guilt is not at issue. See Ch. 1, p. 53. Al [Kufa] Zin

defamation (Versions 2, 3) Avoidance add sanction: death by stoning for adultery Sentence: 100 lashes for fornication, but avoidance of stoning for adultery Stated rationale: diminished culpability (no access to licit sex while imprisoned) Imputed rationale: moral anxiety with the death penalty; severity Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: diminished culpability (no access to licit sex while traveling) Imputed rationale: moral anxiety with the death penalty; severity Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections

CASE 25-[Case of Sex while Traveling] A married man from Yemen commits zin while traveling in Medina. See Ch. 1, p. 53. For other judgments of Al, see also Ch. 2, p. 54, notes 125-28.

Umar Al

Imposition Avoidance

Medina

Zin

Avoidance add sanction: Death by stoning for adultery Sentence: 100 lashes for fornication, but avoidance of stoning for adultery

Ibrhm alQumm (d. mid3rd/9th c.), Qay Al; Sh adth collections

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CHAPTER 3 udd Avoidance vs. Imposition amongst Early Jurists: Methodology and Doubt

I.

Introduction We posited in the last chapter that the traditions and early cases tending

alternately toward udd imposition and udd avoidance reflected competing moral concerns of early Muslim jurists. These jurists were mostly concerned with judicial subservience to divine will and Islamic laws substantive moral imperatives. These concerns both reflected and responded to the jurists relations to the political authorities and to their policies. Jurists uniformly agreed on the mandatoriness of applying udd laws, and they held that udd punishments were triggered only when there had been a clear criminal violation brought before a court and proved without any mitigating circumstances. Intercession, pardon, and overlooking acts of wrongdoing were typically available only before the matter came into the court, which was seen as the public-moral sphere of shared jurisdiction between juristic and political authorities. In that realm, there was a case for udd avoidance only when there was a case for doubt (shubha). But if jurists were to make a convincing case for doubt and properly ameliorate their dual anxieties (between judicial subservience in imposing punishments and other moral values counseling avoidance), they had to make sense of the competing early precedents in criminal law of udd imposition and avoidance. Recognizing that both tendencies existed and that the udd and other maxims were the pithy but normative

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expressions of those tendencies, jurists had to delineate when and what types of doubt triggered the maxims. In other words, jurists grappled with how the divergent cases of imposition and avoidance interacted with the texts and evidentiary rules that laid out the laws in the first place. Given the anecdotal cases in which the udd sanctions were imposed at times but avoided at others, when was imposition of the punishment mandatory, and when was it not? It was the task of jurists to sort this question out, concerned as they were with epistemological certainty in interpreting and applying Gods law. The first order of business was to define the elements of the crime and evidentiary requirements for either udd imposition or avoidance in seeking balance between the competing tendencies toward each. During the first three centuries of Islamic history, we saw previously that judges and jurists alike recognized the udd maxim. But they approached questions of udd imposition and avoidance without an overarching theory of doubt to guide their decisions. Gradually, as we will see, jurists elaborating the law in fiqh works attempted to move in the direction of systematization. Yet it is only after this period (beginning in the 4th/10th century) that identifiable professional legal schools, with their own methodologies, came into their own. This development coincided with the moment at which the udd maxim became both prophetic (as discussed in Chapter 1) and increasingly central to criminal law (as elaborated in the next Chapter). Part of the professionalization involved building robust and schoolspecific theories of doubt in this earlier period. This chapter examines juristic conceptions of the udd maxim in some major extant legal manuals of the first three to four centuries. These are the same jurists who

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recorded and discussed the adth-cum-criminal cases that express certain anxieties related in the previous chapter, except now they are commenting not on individual cases but on divine legislation (tashr, na) as derived from the foundational texts of the Qurn and the Sunnathe latter of which itself came to be defined in different ways. Here jurists are concerned with elaborating the outlines of criminal law against the backdrop requirements of udd enforcement and the accompanying practice of udd avoidance. In other words, the previous chapter discussed the application of criminal laws; it sought to locate the place of the udd maxim in the courtroom together with the moral concerns reflected by the jurists selective recounting of criminal cases. In this chapter, we are concerned with the steps that jurists took toward interpretation; how did they identify and define the text of the legislation governing the application of doubt jurisprudence before it reached the courtroom? That is, we are concerned with the normative rulings of criminal law that jurists derived and elaborated based on the texts together with existing or ideal practices presented in the early precedents through which they sought to restate the law and detail rules for prospective applications of it. This they did through devising interpretive frameworks to say what the law is.1 Here, I elaborate and build on the earlier observation that jurists placed primacy on certain values when selecting and recording criminal cases forming
1 Elsewhere I have elaborated the idea that Islamic law refers to both normative substantive rules and the processes through which jurists interpret the law (fiqh) in attempts to better approximate the ideal law (shara)in their role as the body qualified and endowed with the epistemic authority to say what the law is. See my We the Jurists, University of Pennsylvania Journal of Constitutional Law 10 (2008): 527-79, 542-43. The quotation is in reference to a comparable sense of law and the jurists role in interpreting it on the American Supreme Court as outlined by Chief Justice John Marshall in his exposition of the Judicial Power mentioned in the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). For a similar observation made with respect to the juristic role in interpreting a modern Islamic constitution, see Chibli Mallat, The Renewal of Islamic Law (Cambridge; New York: Cambridge University Press, 1993), 79. 191

normative statements of law, namely a doctrine of judicial subservience and other moral imperatives. In elaborating this criminal law and the beginnings of the accompanying doubt jurisprudence in their law manuals, we witness them folding another element into the mix: a focus on judicial interpretive methodologies. Throughout this discussion, I hope to demonstrate three main points. First, there was no robust theory of shubha during this time; the juristic regard for udd avoidance took a casuistic tone that looked to the early precedents and continued to proceed on a case-by-case basis. When they did recognize cause for udd avoidance, rarely was it on the basis of the substantive law; instead, judges typically were to avoid udd sanctions based on evidentiary concerns. The main exception to that was the anaf privileging of commercial law, which led to anomalous rulings of udd avoidance whenever contracts were involved. Finally, as we address the interpretive and methodological principles that come to define each school, we will observe that they are all textualist. They differed however on what text encompassed and thus how it should govern their doubt jurisprudence. We detail that of each school in turn.
II. Early Shfis

We begin with Shfi. His work represents the first enduring expression of existing developments in the scholarly and juristic circles concerned with creating epistemological analyses of the authenticity of Hadith and establishing theoretical frameworks for elaborating the law on those bases.2 Shfi is also a useful starting
2 For the most recent English-language monograph on Shfis work, see Joseph E. Lowry, Early Islamic Legal History: The Risla of Muammad ibn Idrs al-Shfi (Leiden; Boston: Brill, 2007), esp. 8-16 (for a useful literature review of Shfi studies in contemporary Western literature on Islamic law). For an excellent treatment of Shfis thought vis--vis other juristic currents of his time, see now Ahmed El Shamsy, From Tradition to Law: The Origins and Early Development of the Shfi School of Law in Egypt (unpublished PhD dissertation, Harvard University 2009), 6, 10. Shamsy is careful to note that he does not imagine Shfi as 192

point because he attempted to provide the most comprehensive theory of the law that at once accounts for and responds to the interpretive approaches of the other enduring legal schools, which actually preceded himanafism and Mlikism.3 He, in turn, had a sizeable and enduring impact on those schools, most notably by introducing a adthbased textualism alongside existing rationalist and other interpretive tools.4 The aim here is not to detail the history and broad content of the school differences amongst legal schools.5 It is to identify how their differing interpretive approaches manifested in and related to the development of a role for legal maxims in the law, through situating and analyzing the role of the udd maxim in their discussions of criminal law.
the master architect of Islamic law, but that Shfis revolutionary legal paradigm played a central role in the shift from tradition to law. Ibid. 3-6 and accompanying footnotes (citing and rejecting Coulsons formulation of master architect in Noel J. Coulson, History of Islamic Law, chap. 4; for an earlier study, see Wael Hallaq, Was Al-Shfi the Master Architect of Islamic Jurisprudence?, International Journal of Middle East Studies 25, 4 (1993): 587-605).
3

anbalism is considered a fourth law school and post-dated Shfi; Ibn anbal (d. 241/855) lived some decades after Shfi and it took even more time for his disciples to develop a anbal theory of law. The schools early outlines of law constitute more a school of traditionism than law and as such are placed at the margins of this analysis. A fifth school is hirism, which also post-dated Shfi (its founder, Dwd al-hir died in 270/883-4) and similarly represented a school of traditionism until it was elaborated into a hir theory of law. This school did not endure; its last significant exponent, Ibn azm, died in 456/1064. There is another reason for sidelining discussions of these two schools, as noted in Chapter 1: their traditionism led them to reject or relate to the udd maxim differently from the other schools. Accordingly, they deserve the independent treatment given them in Chapter 5. For a reading of Shfis writings as polemical texts against other contemporaneous legal and theological currents, see Lowry, Early Islamic Legal History, 275-318. For a discussion of the Mlik and anaf influences on Shfi, the latters detailed critiques of their approaches, and Shfis influence on the other schools, see Shamsy, From Tradition to Law, 7 and Chapters 2 (pp. 47-76), 4 (pp. 121-127), Chapter 5 (pp. 186-207).

Lowry is at pains to defend the middle of the road view of Shfi as neither fully traditionist, nor fully rationalist, but as straddling a line between the two as an idea gaining currency in the field. See Lowry, Early Islamic Legal History, 13, 313-16. For specific examples of his text-based interpretive principles, see Shamsy, From Tradition to Law, 186-207.

For standard works that detail the formation, history, and doctrinal differences distinguishing the main Sunn schools of thought, see generally Coulson, History of Islamic Law; Maman, Falsafat al-tashr, 32576 (English trans. Farhat Ziadeh, The Philosophy of Jurisprudence in Islam (Leiden: Brill, 1961)); Christopher Melchert, The Formation of the Sunni Schools of Law: 9th-10th Centuries C.E. (Leiden & New York: Brill, 1997); Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Cambridge: Cambridge University Press, 1997). Also see now idem, Shara: Theory, Practice Transformations (Cambridge; New York: Cambridge University Press, 2009), 27-158. 193

Shfi recognized the tendencies of udd avoidance and imposition from earlier precedents, but focused on udd imposition when explaining udd legislation (i.e., the texts underlying udd laws). He occasionally invoked the udd maxim in discussing limited circumstances of udd avoidance. But he was not very concerned with elaborating instances of udd avoidance, dependent as they were on him first laying out the proper circumstances of enforcement. Instead, he was concerned with bringing order to the growing chaos of divergent and often, in his view, wrong-headed statements by his time of what the law was as contained in the adth literature and the juristic opinions explaining the law (ray).6 Criminal law was no exception. Having studied under leading jurists in Iraq and the ijz, he rejected the legalist minded7 arguments of Ab anfa and his associates in Iraq and the practicebased arguments of Mlik and his followers that drew from the living tradition embodied in the practice (amal) of the people of Medina as representative of the Sunna. He saw those as weak, subjective, and provincial bases for identifying and following the Sunnawhat the Prophet said and did and directed his Muslim followers to do.8 None
6 For a discussion of interpretive trends before Shfi and the major differences between those who practiced a type of pragmatic reasoning (ahl al-ray) and those who relied on the text of adths as bases for law (ahl al-adth), see Abd al-Majd Mamd Abd al-Majd, al-Ittijht al-fiqhiyya inda ab al-adth f l-qarn al-thlith al-hijr ([Cairo]: Maktabat al-Khnj, 1399/1979), 31-92. For a more in-depth discussion of Iraqi ray as a form of systematic legal reasoning based on rational propositions and counter-propositions that generated countless hypothetical cases (masil) on which the law was worked out and for examples, see Shamsy, From Tradition to Law, 14-24.
7

I use this term rather than reason-based to capture the sense in which early anafs approached law and legal interpretation; they did not use pragmatic or practical reason as elaborated in later periods, particularly amongst Mutazil and Sh jurists; nor did they use analogical and other forms of reasoning prevalent in Sunn schools of all stripes during the later period. Rather, appealed to a type of juridical intuition of a legalist mind, which has been called dhawq al-shara (literally: a taste for the law) and even firsa (discussed in Chapter 2 as judicial acumen). For multiple definitions of Sunna, see Abd al-Majd, Ittijht, esp. 11-12. 194

of these arguments yielded a clear-cut means of knowing the Sunna, inasmuch as the anaf arguments produced multiple, contradictory opinions through a plethora of hypothetical scenarios and the Mlik arguments produced more than one interpretation of practice; bothin Shfis viewconflicted often enough with the reports of prophetic practice!9 A more objective indication of Sunna, he argued, was contained in the text of traditions that elucidated earlier precedents of the Prophet and his successors.10 But even with that premise, Shfi needed to devise a way of dealing with conflicting precedents, such asin criminal lawthe competing tendencies toward udd imposition and avoidance. To that end, he attempted to articulate rules to guide the interpretive process and to systematize the law. He articulated many of these methodological moves in his work, the Risla, which is widely considered the first work of jurisprudence (ul al-fiqh).11 To understand how his approach translates into
9 For discussions, see Shamsy, From Tradition to Law, 29 (describing the fluidity of opinions generated by those who subscribed to legalist-minded interpretation (ahl al-ray), which created uncertainties that rankled with Shfi and the Abbsid state alikeresulting in Ibn al-Muqaffas proposal to codify the law into a single book with singular opinions), 49-50 (citing a criminal law debate to reveal the plurality of opinions in Shfis attempt to show that not only [had] jurists and governorsboth carriers of the normative amal in the Mlik frameworkdisagreed on individual issues, but also these sources in fact contradict the Mlik position that claims to be based on them .).
10

See Majid Khadduri, Introduction, in al-Imm Muammad ibn Idris al-Shfis al-Risla f Ul al-Fiqh: Treatise on the Foundations of Islamic Jurisprudence (Cambridge: Islamic Texts Society, 1987), 42-43 (Not only did he reject the use of sources that [he deemed] not Islamic, such as custom and personal opinion, but he also defined the method by which legal reasoning was restricted within the framework of authoritative sources [i.e., authentic adths].); Shamsy, From Tradition to Law, 54 (Al-Shfis solution for safeguarding the integrity of the revealed message was to isolate the sacred past as a clearly defined and uniquely normative category. This past was enshrined in and accessible through verifiable reports primarily the Qurn and the Sunna, of which other sources such as consensus (ijm) and the opinions of the Companions were derivations. The circumscribed sacred past [as contained in adths thus provided an unchanging and authoritative measuring sticka canonby means of which the jurists could evaluate and categorize new cases.) (citations omitted).

11

See Khadduri, Introduction, 40 (calling him the founder of ul al-fiqh (roots or sources of the law)); cf. Coulson, History, chapter 4. Many disagree with this designation. See, e.g., Wael Hallaq, Was AlShafii the Master Architect, esp. 588 (arguing that Shfis designation as founder of ul al-fiqh was a later creation as his Risla had very little, if any, effect during most of the 9th century); Joseph E. Lowry, Does Shfi Have a Theory of Four Sources of Law?, in Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002): 23-50; idem, Early Islamic Legal History, 16 ([I]t can no longer be sensibly maintained that Shfi founded the sciences of ul al-fiqh or that the Risla simply constitutes 195

criminal law rulings, we can look to his work, Umm, whichcompiled later in his life contains and explains his most developed opinions of substantive law (fiqh). A. udd Definition, Commission, Imposition In his discussion of criminal law, Shfi makes arguments designed to outline the elements that require udd imposition rather than those necessary to trigger avoidancethough the two are certainly related and later conceived of as inverses to one another. For him, the text of the Qurn provides a starting point for criminal law, as in the verse commanding hand-amputation of the the thief, male or female as their due for their crime, an exemplary punishment imposed by God.12 Yet such scriptural laws are incomplete without the traditions, Shfi argues; to gain a full understanding of law, a jurist must look to authentic traditions, evaluating them for authenticityreconciling the valid reports and rejecting the spurious ones.13 Any discussion of udd laws must then begin with the textual rules requiring imposition
the first work of this discipline, because the Risla is not a work of ul al-fiqh at all.). But the truth of the matter is that Shfi was the first to systematize the law through elaborating some theory of sources toward greater consistency and predictability in legal interpretation. With Shfi and Mlik jurists, the final outcome of a given legal problem would depend on the existence of a local custom, juristic preference, or some measure of juristic insight not readily apparent to another jurist in another locale or with different sensibilities about the law. Shfi was the first to commit to a consistent method for deriving and justifying the law. Qurn, 5:38 (al-sriqu wal-sriqatu fa-qa aydiyahum jazan bi-m kasab naklan min Allh .). This may be referred to as his starting point quite literally. Shfi begins the chapter on criminal law with a citation to and discussion of this verse in the course of discussing his methodological approach generally, namely, the need to read Qurnic verses in light of authentic adths. See Shfi, Umm, ed. Rifat Fawz Abd al-Mualib (Manra, [Egypt]: Dr al-Waf lil-iba wal-Nashr wal-Tawz, 2008), 7:319. NB: I have used this edition where possible because it is the only critical edition of this work (first published in 2001); there may however be remaining citations to an older edition, as marked below.
13 Shfi, Umm, 7:319. Accordingly, Shfi rejects definitions of theft that diverge from his conception, contending for instance, that any taking constitutes theft based on the apparent meaning of the Qurn without reference to traditions where the Prophet defined theft with respect to a certain minimum value, or that the actionable amount was more or less than dnr because these are based on inauthentic traditions. See ibid., 7:325 (wa-laysa f aad ujja maa Rasl Allh [honorific omitted] wa-al lmuslimn ittibuh fa-l il adth a dhahaba man khlafn wa-l il m dhahaba ilayh man taraka l-adth wa-stamala hir al-Qurn). 12

196

meaning both Qurn and Sunna (as embodied in authentic adths). Under this rubric, as we will see, avoidance is contemplated only after establishing criminal liability with respect to the substantive criminal law, and arises typically based on non-textual, evidentiary grounds. 1. Defining Criminal Elements Shfis treatment of afwns Case is a case in point. He understood the incident to exemplify a rule of udd imposition. According to Shfi, some jurists mistakenly read the Prophets statement to afwn in that case, if only you had done so [i.e., gifted the stolen item to the thief] before [coming to me with the charge], to mean that there was no add liability and that perhaps the sentence was not carried out.14 Because the thief had come to own the stolen item, they say, carrying out the sentence would be tantamount to punishing the now-actual owner for the theft of his own property. But for Shfi, their interpretation is wrong because it disregards the general rules governing the basic elements of theft, including elements of timing and culpability in udd laws. For him, the traditions clarify that add liability is established when the elements for a completed theft are met: (1) a taking of an actionable amount of a minimum of dnr (that is, 3 dirhams), (2) from a secure location (irz), (3) by someone who was not entitled to the property.15 Further, these

14 For the anaf argument to this effect, see Qudr, Tajrd, 11:5987, further discussed below.
15 Shfi, Umm, 7:324, 372-73 (citing the adth, Hand-cutting is due for (theft of goods worth) of a dnr or more: al-qa f rub dnr fa-idan). Here, Shfi is apparently reconciling multiple adths, which state alternatively that the minimum amount was dnr or 3 dirhams by equating the two; he is implicitly rejecting additional adths stating that the minimum amount was 5 or 10 dirhams. Significantly, Ab anfa accepted the possibility that all adths on the matter were authentic reports, and out of a principle of precaution (itiy), adopted the highest stated amount, i.e., 10 dirhams as the minimum actionable amount. For a citation of all four traditions and discussion of the dispute between Shfi and Ab anfa, see Abd al-Majd, Ittijht, 557.

197

elements must be completed at the time of the offense, not after a judge has issued a guilty verdict and sentenced the offender.16 In some measure, Shfi was reacting against considerable debates about the basic elements of theft:17 He insisted on elaborating that law based on what he takes to be certain, authentic traditions. The important point to note here is his emphasis that, whenever those elements are complete, there is add liability on clear textual bases, and the add punishment is not to be avoided. It is within this framework that he interprets afwns Case. In that case, the thief was add eligible because he met the basic elements, which barred the possibility of add avoidance. He took afwns cloak at a time when he did not own it; he took it from a secure location (as afwn had attempted to secure it under him while sleeping);18 and the cloak presumably was worth more than dnr. All of these elements were completed at the time of the crime. Because these elements were met, the add punishment was due, notwithstanding afwns attempt to change the facts of the case after the verdict.19 Essentially, Shfi added the timeliness element
16 Shfi, Umm, 7:326 (al-add innam wajaba yawm kna l-fil), 346 (noting that a judge should always look at the status of the offender at the time of the theft (fa-nur abadan il l-l allat yasruq fh l-sriq)).
17

For the positions see Ibn Jarr al-abar, Jmi al-bayn an tawl y al-Qurn [hereinafter Tafsr], ed. al Abd al-Fatt al-Khlid and Ibrhm Muammad al-Al (Damascus: Dr al-Qalam; Beirut: al-Dr alShmiyya, 1997), 3:220-22, noting that some scholars relied on the apparent meaning of the verse (hir al-ya) to hold that no minimum value was required and that, initially, there were no adths in which the Prophet turned someone away for stealing only a single dirhamunlike the case found in Ibn al-Qsims case, that Ibn al-Zubayr imposed the add for a single dirham (silver coin)). abar disagrees too with the view that the verse is general, holding that it specifically refers to theft of the value of at least of a dnr (gold coin), based on the more sound traditions. Ibid.

Shfi, Umm, 7:377 (extending this example broadly, under him (bi-ijih alayh); likewise, anyone who is in a public place (mawi mub), and sleeps on his cloak (thawb), that becomes a secure location, whether he is in a desert, bathroom, or otherwise; because this is the way he secures his own belongings.).
19

18

Ibid., 7:378 (noting that the add is due even if the stolen item is gifted to the thief before the imposition of the add punishment or if he has gained partial ownership interest (malakah bi-wajh min wujh al-milk)). 198

to refine his definition of theft both to explain afwns Case and to draw on it as a prophetic precedent to clarify whatever ambiguities were left by the other foundational texts as to the law of theft. Shfi noted that this added timeliness element can have an opposite effect, sometimes mitigating or barring criminal punishment. For example, if a slave commits a crime, he or she will not necessarily receive the full add punishment. Say the slave steals from his master, commits defamation, or has sex outside of marriage, and the master frees him before judgment is rendered; in this case, the (former) slave is not fully add eligible. By a Qurnic rule, slaves who commit crimes are liable for only half the add punishment.20 Shfi applies this to the hypothetical scenarios here to hold that the rule still applies, because it is textual; if the crime is indeed proved to have been committed by an offender who was a slave at the time of the offense, the text requires that he receive only half of the add punishment for free persons.21 Here, the text of the Qurn is controlling, and interacts with the timeliness requirement to bar criminal liability. Relatedly, slaves who steal from their masters might not be liable for add punishment at all. Here, Shfi cites an early precedent wherein Umar ruled that a slave could not be punished for stealing his mistresss mirror, worth 80 dirhams. Shfi
20 Ibid., 7:367. For the Qurnic verse imposing a half-punishment in the context of zin, see Qurn, 4:25 (As to slavewomen who become respectable married women (lit.: chaste through marriage), if they commit an indecency, then they are to receive half the punishment of free married women : fa-idh uinna fa-in atayna bi-fishatin fa-alayhinna nifu m al l-muanti min al-adhb .).
21

Aside from slavehood, other exceptional categories that decrease or delay udd punishments include pregnant women, terminally ill defendants, those who would die if punished (esp. for theft) because of extreme heat or cold, etc. In a famous case of a terminally ill man who was found guilty of having committed zin, the Prophet ordered that he be hit lightly twice with a plant that had 50 burrs on it thus satisfying the formal requirement of 100 lashes. Shfi, Umm, 7:343-45. Like all other jurists, Shfi notes that adulthood or majority is a requisite element for udd liability, but (unlike some jurists) that gender makes no difference. See ibid., 7:374-75. 199

explains that slaves and masters take from one anothers property regularly. In other words, only three of the now-four elements (a taking, from secure location, with no ownership interest, and timeliness) have been met: (1) the slave took an item worth an amount well above the minimum actionable amount of just three dirhams (or dnr), (2) he did not own the mirror, and (3) these elements were satisfied at the time of the taking. But the additional elementstealing from a secure locationwas not met. Unlike the thief in afwns Case, the woman of the house lived with the slave, who had free access to the household. There was no question of him taking from a secure location. Had the slaves been prevented free access, that would have amounted to a secure location for which the woman she would have a claim, as would a person who locks the door of a rented house if the owner then enters and steals his belongings. But as these were not the fact of this case, the legality or criminality of the taking was not free of doubt (bi-ghayr shubha). Instead, the act must be categorized as fraud, dishonesty, breach of trust or the like (khiyna)which does not meet the definition for the specified add crimerather than theftwhich does.22 These treatments show that, for Shfi, the significant point of concern is not a tendency toward udd imposition or avoidance; rather it is defining the criminal elements on textual bases, focused on traditions. Whenever the textual bases are established and the elements completed, the add is to be imposed. The foregoing discussion should make clear that by traditions, Shfi does not mean the clear import of adth texts, nor does he refer only to texts with sound prophetic provenance. Instead, he has in mind reports of early authorities (including adths, thr, and
22 Ibid., 7:382-84 (noting that the same applies to khalasa, citing a case wherein Zayd b. Thbit said (laysa f khalasa qa [alt. reading: khulsa; modern term: ikhtils]). 200

caliphal directives) as contained in their explicit directives, implicit rules extracted from cases over which leaders of the earliest community presided, and even modifications to the textual traditions offered by Companions. An example of the latter concerns the punishment for drinking, the contours of which were of considerable debate, particularly between Shfi and jurists in Iraq. The debate boiled down to a matter of interpretation. The Qurn specifically prohibits wine-drinking.23 Shfi, along with most other jurists, held that all intoxicating drinks are prohibited, based on the Qurnic prohibition and supplemented by a adth saying as much.24 Yet many Iraqis did not regard as illegal intoxicating drinks made from dates and other substances or prepared in certain ways.25 In particular, Ab anfa ruled that add liability attached only for drinking such beverages in such quantity that one actually became intoxicated.26 To counter this, Shfi launched into a lengthy discussion designed to prove that the prohibition on drinking was a broad one. He cited over two dozen traditions to explain that the Qurnic prohibition of wine extends to all intoxicants, and drinking any intoxicant

23 All jurists agreed that the Qurn prohibited wine-drinking (khamr), which the Qurn specifically prohibited. Qurn, 5:90.
24

All but the anafs regarded the prohibition as a general one. For Shfis view, see his Umm, 7:365 (every drink that intoxicates is prohibited: kull sharb askara fa-huwa arm, citing multiple traditions to that effect as well as precedents of Umar, who flogged someone for drinking il).

25

Of particular concern was nabdh or il, which proto-anafs amongst Iraqi jurists permitted, as well as fuqq which the Sha specifically prohibited. For definitions, see Haider, Zaydism and the Politics of Perpetual Revolution, 239-40 (defining nabdh as a type of infused drink produced by soaking dried or fresh fruits, e.g., raisins or grapes, respectively, until the water became sweet with the fruit, and il as drinks produced by simmering grape juice until it had been reduced to one-third of its original volume). For classifications of the other types of intoxicating beverage typically discussed by these early jurists, see ibid., Chapter 6 (on alcohol and the Islamic debate over prohibition), esp. 237-40 (classifications). Shfi criticizes Ab anfa for relying on a adth, to support this opinion, with an unknown narrator in its chain and ignoring the vast evidence that he presents in the form of over a dozen reports that anything that intoxicates is arm. Shfi, Umm, 7:365-66. 201

26

creates add liability.27 By insisting on the text to resolve the debate, Shfi was taking aim at Ab anfa and the other Iraqi jurists, whom he accused of arbitrarily allowing certain types of intoxicants to accommodate an Iraqi penchant for drinking. More broadly, Shfi was following his general methodological framework of insisting on textualism to determine the substantive law before reaching issues of udd avoidance on the basis of evidentiary doubt.28 As for the punishment for intoxication, Shfi readily acknowledged that no scriptural or adth text imposes a add punishment of eighty lashes. The early traditions report that the Prophet announced a sentence of forty lashes, though incidents of actual imposition were infrequent and not well known.29 Umar increased the number to eighty sometime after he assumed leadership because he noticed that drinking was becoming a more regular phenomenon; he reasoned that whoever drinks gets drunk, and whoever gets drunk talks nonsensically (hadh), and whoever speaks so makes defamatory remarks (iftar) .30 In essence, the serious harm that he perceived to the public spherewith apparently increased incidents of wine-drinkingled Umar to double the punishment. The change stuck. Shfis treatment of it suggests that he saw this move as a legitimate basis for the law. That is, he legitimated Companion
27 See Shfi, Umm, 7:363-66, 438-49.
28 29

For Ab anfas response, see the next section.

For example, one reported event happened after the Battle of unayn, when the Prophet sentenced Khlid b. al-Wald to be flogged for drinking. When Ab Bakr assumed leadership over the community following the Prophets death, he was unaware of the precise rules on wine drinking and therefore had to ask those who were at unayn about what transpired. When they informed him, he followed the precedent of imposing 40 lashes. See Shfi, Umm, 7:447.
30

See Shfi, Umm, 7:447. Sunn sources observe that Umar arrived at this decision through consultation with Al, which likely follows a common practice of inserting Ali in controversial decisions polemically to serve sectarian purposes. For further discussion and a theory on how and why this came to be, see Modarressi, Early Debates, 5-39. 202

policies such as this one, considering reports of them to be text as authoritative as prophetic or divine legislation.31 In sum, Shfis concernsas a way of alleviating moral anxietieswere with providing methodological clarity and consistency in the definition of law, as has been well-argued in other contexts.32 We see here how this concern pervades his criminal law jurisprudence; rather than focusing on doubt, he aims to eliminate or preempt it through identifying and appealing to authentic adth texts. In some respects then, though Shfi accepted the udd maxim in evidentiary matters (as we will see), his textualist stance led him to take a stand against udd avoidance on questions of substantive law. 2. Against Lenience One element of Shfis stance against substantive udd avoidance was manifested in his taking aim at what he perceived to be a anaf tendency toward lenience. The debate arose in the context of recidivists, where Shfi emphasized that the add sanction is to be imposed according to the dictates of authentic traditions, regardless of pragmatic or other considerations. To return to the example of stealing, consider the way his treatment diverges from that of the Iraqi jurists concerning multiple thefts. Iraqi anafs maintain that add penalties are due upon commission of a first and second theft (i.e., amputation of
31 Abd al-Majd notes that this held true for the group of ahl al-adth (traditionists) generally and for Shfi, but not for hirs, who regarded only prophetic statements as authoritative. See Abd al-Majd, Ittijht, 359-61. For recent studies, see Lowry, Early Islamic Legal History; Shamsy, From Tradition to Law. See also Khadduri, Introduction, 43 (Shfis method of jurisprudence was concerned less with developing the law that existed in his age than with systematizing a body of law that had already reached a high degree of growth. Thus, in the Risla, Shfi paid less attention to the problem of developing new principles of law than to the problem of how to demonstrate that all the principles and rules that existed in his time where derived from recognized Islamic sources.). 203
32

the right hand then the left foot), but not thereafter.33 They arrived at this conclusion according to their reading of the Qurnic verse on theft, which only mentions hands and which they understood to mean the right hand;34 they derive the rule about amputating the left foot by analogy to the punishment due to highway robbers. The Qurn specifies certain punishments for acts of highway robbery; one of them is crossamputation of a hand and a foot, which jurists took to cover acts of theft committed in the course of highway robbery.35 Thereafter, anafs maintain, the offender is to be imprisoned and given a (lesser) punishment at the discretion of the judge.36 If any other limbs were cut, they argue, he would be unable to walk or make a living; repeat amputations for repeat offenses would lead to personal ruin.37 For further support, they point to several traditions in which Al, amongst others, ruled that there was no add liability after the second offense, and they reject traditions stating otherwise.38 Reportedly, Al said I (would) feel guilty before God if I left (a thief) without the hands
33 Notably, the Qurnic verse also tolerates the oppositethe left hand and right footas it does not specify which hand and foot, but merely says that hands and feet [can be] amputated from opposite sides. See Qurn, 5:33 (aw tuqaaa aydhim wa-arjuluhum min khilf).
34

See Qudr, Tajrd, 11:6004 (noting agreement that aydiyahum means aymnihim, and that Ibn Masds variant reading includes the latter term), 6010-11 (analogizing to brigandage). See Qurn, 5:33 (Those who wage war against God and His messenger and strive to make mischief in the land is thisthat they should be killed or crucified or their hands and feet should be cut off on opposite sides or they should be banished from the land : innam jazu lladhna yuribna llha waraslahu wa-yasawna f l-ari fasdan an-yuqattal aw yuallab aw tuqaaa aydhim wa-arjuluhum min khilfin aw yanfaw min al-ar .). Though the verse does not specify which hand or foot, jurists understood it to refer to the right hand and left footperhaps because they had in mind the traditions specification of the right hand for theft. For juristic interpretations, see generally Abou El Fadl, Rebellion and Violence.

35

36

Shfi, Umm, 7:329 (ubisa wa-uzzira); cf. Qudr, Tajrd, 11:6010-11. This at least seems to have been the case at the time that these authors wrote, following the general trend of requiring discretionary punishments under the jurisdiction of Islamic law to be lesser than the add sanction. But this was not always or universally the case; and it rarely applied to punishments imposed under the jurisdiction of the political authorities. The latter frequently applied harsher punishments and in Ottoman administrative terminology, for example, terms for discretionary punishment (tazr, siysa) could themselves mean the death penalty. Shfi, Umm, 7:332 (li-illat al-istihlk maa khilf al-sunna wal-athar); cf. Qudr, Tajrd, 11:6010-11. See Qudr, Tajrd, 11:6007. 204

37 38

by which he eats or feet by which he walks.39 This combination of traditions, rational arguments, and pragmatic concerns justified the anaf position. But to Shfi, that position seemed to be precisely the type of balking at severity that Ibn Masd (following the Prophet) rejected in the Case of the Drunken Orphan.40 According to Shfi, the Iraqi jurists got it wrong because they did not rely on authentic texts and they folded pragmatic, atextual arguments into their reasoning. Recidivists, he believed, were to receive the same punishments as first-time offenders, if not moresubject only to the expansion and limitations of the traditions. Each time a thief steals, he or she can be sentenced to amputation of one of his or her extremities. The first time, it is the hand; the second, the left foot; the third, the left hand; and the fourth, the left foot. For support, Shfi cites an early precedent in which Ab Bakr ordered the amputation of the left hand of a thief whose hand and foot had been cut off,41 and there are other traditions where the Prophet reportedly commanded as much.42 Thus, Shfi attacked anafs for relying on rational-pragmatic arguments and then attempted to demonstrate that, even if those arguments were acceptable, they
39 Shfi, Umm, 7:331. Cf. Abd Allh b. Mamd al-Mawil, al-Ikhtiyr li-tall al-Mukhtr ([Egypt]: Maktabat wa-Mabaat Muaf al-Bb, [1951]), 341-51 (citing adths found in Ibn Ab Shayba (d. 235/849), Muannaf; Draqun (d. 385/995), Sunan; and Bayhaq (d. 458/1066), Sunan).
40 41

For discussion, see Chapter 2, Appendix, Case 11, and accompanying citations to text.

If the thief continues to steal, he will be punished accordingly at the discretion of the judge (tazr). See Shfi, Umm, 7:327. For a fuller treatment, cf. Muammad al-Zuhr al-Ghamrw, Anwr al-maslik Shar Umdat al-slik, on the margins of Ibn al-Naqb (d. 769/1367),Umdat al-slik wa-uddat al-nsik (Damascus: Dr al-iba, 1996), 494 and accompanying text by Ibn al-Naqb (mentioning only the right hand and left foot).

See Draqun, Sunan, 3:181, no. 292 (cited in Qudr, Tajrd, 11:6011) (reporting that the Prophet said about the thief: in sariqa fa-qa yadah, thumma in sariqa fa-qta rijlah thumma in sariqa fa-qa yadah thumma in sariqa fa-qa rijlah). As Qudr notes, aw concluded that this adth had no authoritative basis (l al lah), as it is uniformly questioned by all of the traditionists, who reportedly were unable to trace its source (kull man laqaynh min uff al-adth yunkirnah wa-yadhkurna annahum lam yajid lah alan). 205

42

were inconsistent with other norms and conclusions (which is why they are not acceptable). For example, he observes, anafs regularly attribute quite a few traditions to Al that are generally unreliable, and indeed, despicable.43 In contrast to the report invoked above that shows Al avoiding the add penalty for third-time offenders, they adopt reports that Al ordered the foot to be amputated in the middle (rather than at the ankle, causing needless pain) and that he shaved off the fingertips of minors who stole (though there is no add liability for minors).44 Further, Shfi retorts mockingly against the anaf point that excessive severity would ruin the offender. Criminal sanctions are harsh, he says, because they are meant to deter people from committing crimes in the first place and to serve as spiritual expiation for the offenders.45 Would anafs make the same argument about the death penalty? Is not that the utmost ruin (aq ghyat al-istihlk) that a person could face? Would they then apply the udd maxim indiscriminately to practice udd avoidance out of fear for the capital offenders personal ruin (wa-dara l-udd hhun li-illat al-istihlk)?!46 The not-so-subtle subtext is that judicial subservience to the law as stated in the texts should be paramount, despite the harsh consequences for recidivists. The governing principle of criminal law for Shfi was that text controls and it specifies that repeat

43 See Shfi, Umm, 7:330 (ghayr thbit, mustankar).

44 45 46

See ibid. See ibid. Ibid. 206

offenses require repeat punishments.47 An orientation toward lenience therefore was for him not a valid reason for avoiding udd sanctions.48 * * *

So far, the general thrust of Shfis criminal law jurisprudence has been to emphasize udd imposition based on the elements of the crime gleaned from texts and earlier precedents that he deemed controlling. Rarely, however, did the facts fit the textual definitions so neatly. In fact, the early cases as recounted in the last chapter were themselves normative texts as adths that jurists used to fill out the lacunae between the scriptural text and real-life circumstances. afwns Case was just one example. On its basis, Shfi added a timeliness element to his initial text-based tripartite definition. This worked for defining criminal elements added by early precedents of the Prophet and his Companions contained in adths, whichas noted constituted foundational texts for Shfi.49 In fact, this approach pervades all of the areas of criminal law that Shfi discussed as he laid out the rules for zin, intoxication, etc.50 Yet, he did not always insist on add liability and add imposition. Evidentiary matters often fell beyond the text, and it is there that the udd maxim came in for Shfi.
47 Ibid., 7:330-31.
48

An exception concerns the add for drunkenness for which, Shfi says, a reliable report indicates that Prophetic practice abrogated the rule requiring the death penalty after the third offense. See Shfi, Umm, 7:363-65 (noting a Prophetic saying imposing the rule and a subsequent practice wherein he did not apply the death penalty, as a permanent dispensation or suspension of the original rule (rukha): walqatl manskh bi-hdh l-adth wa-ghayrih wa-hdh mimm l khtilf fh bayn aad min ahl al-ilm Almtuh). See above, note 31, and accompanying text. In the same way that he argued for theft, after laying out the elements of each of the other crimes and then considering factors that do not arise in the simple statements of definition, Shfi steadily adds certain across-the-board elements intended to more precisely articulate when the law requires udd imposition. For example, on zin, see Shfi, Umm, 6:330-36 (observing that non-Muslims are subject to the Islamic udd laws rather than their own laws), 7:394-95 (that an adulteress is to receive a penalty of death-by-stoning even when having committed the offense with a servant or laborer (asf)). 207

49 50

B. udd Avoidance 1. Mens Rea: Subjective Indicia Shfi addressed instances of add avoidance most explicitly in his discussion of factors that merit udd avoidance for zin and [factors] that do not.51 The main factors listed in this section are coercion and ignorance.52 In speaking of coercion, Shfi is referring to rape or coerced sex.53 If a man rapes a woman [lit.: forces her], the add sanction is imposed on him but not on the woman, because she has been coerced (mustakraha).54 Put differently, Shfi discussed coercion as a cause for add avoidance, and in so doing, specified voluntariness as another central element of criminal liability for zin. A modern criminal law analyst might observe that, for the rape victim, there was never any add liability to be avoided in the first place because the criminal elementsincluding voluntarinesswere not completed. Yet Shfis treatment was typical of other early jurists approach to coercionwhich they regarded as cause for evidentiary doubt (shubha).55 To differing degrees, as we will see,

51 Ibid., 7:394 (m yudra fh al-add f-l-zin wa-m l yudra).

52

Ibid., 7:395 (ikrh: idh stakrah al-rajul al-mara, and jahla: fa-in idda l-jahla bi-anna lah zawj, in-qlat balaghan mawt zawj wa-tadadtu thumma nakatuh).

The rape could happen by coercion of a third party, who forces a man to rape a woman. Thus, Shfi reportedly held that, if a man is forced to rape a woman, neither will receive the add as they have now both been coerced. This is contrary to the general anaf position because of disputed facts; anafs interpret the so-called coerced mans arousal to indicate some measure of voluntariness, reasoning that true coercion brings about deep-seated fear, which would prevent the arousal necessary for the rape. The exception is where the suln coerces the act, in which case add liability is removed because the coerced man is seen to have no recourse for appeal regardless of his arousal. See Qudr, Tajrd, 11:5896. Shfi, Umm, 7:395 (noting that the perpetrator is also fined a sum commensurate with customary dower amounts (mahr mithl) along with a fine for any injuries (arsh) for a free woman or whatever decrease in value has been occasioned by the loss of virginity for a slavewoman (naq min thamanih)). It is unclear whether he bases this requirement on adth texts, such as the Case of Umar and the Mysteriously Pregnant Woman (discussed in Chapter 2, see Appendix, Case 14 and sources cited therein). He well might, if attempting to pursue a consistent methodology of legal interpretation according to textual bases; but it is impossible to tell for sure, as he does not mention textual bases here. Ibid., 7:395. 208
55 54

53

they folded evidentiary matters into rules of the doctrine of udd avoidance, and discussed the doctrine under headings relating to evidence. Shfi continued in this vein when discussing criminal intent or knowledge. By ignorance, he actually meant an amalgam of factors related to mistake of fact, mistake of law, and criminal intent, which he adduces through a discussion of marriage. Islamic family law bars certain classes of people from marrying one anotheramong them, closely related family members.56 These rules and others governing valid marriage partners are complex,57 especially given frequent marriages and remarriages that produced interweaving family ties common in early Islamic societies.58 It is then perhaps unreasonable to expect everyone to know the specifics of all the marital rules in detail. Accordingly, Shfi held that there was no add liability for a couple that marries but does not know that the marriage itself is invalid due to one of the legal impediments laid out in the detailed family law rules. Shfi posits that it could be the case, for example, that each spouse simply did not know that the other was not a valid marriage partner. Alternatively, the wife could have mistakenly thought that she was
56 That is, family members who are prohibited (maram) through blood relations, foster relations, or some other legal status that made them ineligible for marriage (e.g., women who are already married). See Shfi, Umm (1961), 5:23-27 (listing categories of close relatives prohibited from marrying one another). This rule was so central to the mores and practices of the Muslim community by Shfis time that it needed no citation. Nevertheless, in his efforts to provide textual support for each rule, Shfi cites an incident wherein Abd Allh b. Umar wanted to conclude a marriage between ala b. Umar and Bint Shayba b. Jubayr, even though they were closely related. Abn b. Uthmn refused to request to attend the wedding, saying that his father (the third caliph), had told him that the Prophet had explicitly prohibited such unions. See ibid., 5:78-79 (adth: l yanki al-maram wa-l yunka wa-l yukhab).
57

In addition to the rule against marrying close family members, Shfi lists others, not all of which are followed by other legal schools. See, e.g., ibid., 5:79-81 (against marriages designed to satisfy the rule against a fourth remarriage after three consecutive divorces from the same person without remarrying someone else beforehand (nik muallil) and temporary marriages (nik al-muta)), 76-77 (against parents agreeing to marry daughters through the pre-Islamic practice of trading daughters in marriage (shighr), 12-13, 22, 23 (against marriage without a guardian, two witnesses, or dower respectively).

See, e.g., Bernheimer, A Social History of the Ald Family, 60-63; Asad Ahmed, Between the Acts: The ijz Elite and the Internal Politics of the Umayyad and Early Abbsid Empires (unpublished PhD dissertation, Princeton University, 2007). 209

58

eligible to remarryhaving received news that her pervious husband had died, perhaps away at battle, and having tried to follow the proper procedures to remarry.59 In such instances, if the couple marries but is arrested on zin charges, Shfi says, the udd maxim applies: judges are to avoid imposing the add sanction if the couple swears an oath that they did not knowingly violate the law.60 But if the couple admits to knowing both the facts (that the woman was closely related or still in the midst of her divorce waiting period from a previous marriage) and the law (that marriage in such circumstances is barred), then the add sanction is due.61 For example, if the man says that he knew the woman was still in her divorce waiting period but married her anyway, or if the woman says that she knew that she was still technically married to someone else, both incur add liability for going forward with the marriage despite knowing of its illegality.62 In this way, Shfi spells out a knowledge requirement alongside the voluntariness requirement articulated above. Finally, Shfi added an element of intentionality, at least for defamation (qadhf), which for him turned not just on the understood effect but also the intention behind offensive or lineage-denying statements. For allegedly defamatory statements that are only implicitly offensive (tar), Shfi generally held that there was no add

59 Shfi, Umm, 7:392-93; cf. above note 52.

60

Ibid. (fa-in idda l-jahla ulif wa-duria anh al-add). On the symbolic importance of oaths that helps explains their importance in procedural matters, see Mottahedeh, Loyalty and Leadership, 46, 61, and passim.

61

Shfi, Umm, 7:393 (wa-law anna rajulan ukhidha maa mraa fa-ja bi-bayyina annahu nakaah [sic = ja aad bi-bayyina or perhaps uqma alayhi al-bayyina] wa-qla nakatuh wa-an alam anna lah zawjan aw annah f iddatin min zawj aw annah dht maram wa-an alm annah muarrama f hdhihi l-l uqma alayh add al-zn, wa-kadhlik in qlat hiya dhlika [aw] in qlat qad alimtu ann dht zawj wa-l yaull l lnik uqma alayh l-add). Ibid. 210

62

liability unless the person making the statement intended to defame.63 When in doubt, the judge is to ask the accused to swear an oath that he did not intend for his statement to be taken to deny the other persons lineage, and that he had a wholly lawful purpose.64 Taken together, by insisting on elements of voluntariness, knowledge, and intent, Shfi has added a thick concept of mens rea to the requirements for criminal liability.65 In Shfis treatment here, he did not mention shubha specifically; yet, he seems to have had the udd maxim in mind. His language recalls the phrasing of the maxim and he is concerned overall with instances of add avoidance for evidentiary deficiencies. 2. Proving the Elements Finally, Shfi specified that it is not that the add penalty will always apply whenever it seems that a crime has taken place and the criminal elements, including mens rea, were completed at the time of the offense. In fact, he maintains that add liability can be removed even after a judge renders a guilty verdict and begins to impose the sentence, despite claims of some jurists that the end of a criminal trial is final, and that announcing the sentence is as good as carrying it out.66 This
63 Muzan, Mukhtaar, 9:277.
64

Ibid. (giving the example of someone who calls an Arab a Nabatean, although his parents were not, and then swears that he only meant to refer to the other person geographical place of origin, not to deny paternity of his Arab father).

Shfi implicitly folds these mens rea requirements into his idea of criminal liability for the other types of crimestheft, wine-drinking, defamation (the traditional udd crimes), as well as apostasy and highway robbery (qa al-arq) (which he also considers udd crimes) and qi (murder and personal injury). Mens rea becomes significant as later jurists develop the concept into a major component of the doctrine of shubha under the rubric of the udd maximonce they have transformed it from a negative doctrine to a positive one. Shfi, Umm, 7:327.
66

65

Ibid., 6:131 (khurj ukm al-kim qabla ma al-add ka-ma al-add). 211

discussion takes us directly to criminal sessions where judges are applying criminal law rules that contain heightened evidentiary procedures, particularly in the context of zinwhere the penalty can be death. As a general matter, there are four parties to criminal cases: the accuser, the accused, witnesses, and a judge.67 To initiate a criminal proceeding, the accuser brings a claim against the accused before a judge. Establishing add liability for most crimes requires a confession or two reliable witnesses to the crime, both offering a description that is detailed and identical, in the presence of the victim. Zin proceedings require multiple confessions or the testimony of four witnesses to the actual act of penetration who give uniform testimony as to the time, manner, and place of the act.68 In contrast to commercial law contexts, a single witness plus an oath (yamn) is insufficient to establish the crime.69 Likewise, unlike other non-criminal law contexts where women can testify (two in place of one man),70 womens testimony is typically inadmissible in udd proceedings.71
67 See Peters, Crime and Punishment. The same was generally true in the medieval period in other polities; for the common law and continental context, see Whitman, Reasonable Doubt, 96.
68

Shfi, Umm, 7:391 (specifying that the witnesses must see the act, as the well-known adth puts it, like an eyeliner stick going into a kohl container: annahum raaw dhlika minh yudkhal f dhlika minh dukhl al-mirwad f l-mikala). Unlike most other jurists who require multiple confessions, drawing on Mizs case and analogizing to the four witness requirement, Shfi requires only a single confession. Ibid., 387-88, 391 (particularly for theft or highway robbery).

69 70

For an insightful article addressing the development and socio-political background of evidentiary disparities between men and womens testimony, see Mohammad Fadel, Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought, International Journal of Middle East Studies 29 (1997): 185. Cf. now Asma Sayeed, Gender and Legal Authority: An Examination of Early Juristic Opposition to Women's adth Transmission, Islamic Law and Society 16, 2 (2009): 115-50. Shfi, Umm, 7:388 (l yajz f l-udd shahdat al-nis). Exceptions are in cases of theft, when only a single (male) witness is available and the stolen item is present; in this case the accuser produces the single witness and swears an oath (ilf) and/or two women can testify (in place of a second male). Even then, the testimony is considered defective. If the crime is established through these means, the accused is to pay back the value of the good on the day it was stolen, but no amputation is required. In cases of zin, liability for the punishments of flogging and stoning alike are removed with such defective testimony. Shfi, Umm, 7:387, 389. The other major exception for allowing womens testimony in udd 212

71

For Shfi, any deficiency in meeting these evidentiary burdens creates a measure of doubt as to whether the criminal elements have been established. When it comes to drinking, for example, although Shfi maintains that the law forbids drinking any intoxicant, he says that there is no add liability unless the drunken person confesses to drinking an intoxicant or if witnesses testify against him and can establish that he did so knowingly.72 As well, Shfi holds that judges should not impose the add sanction on anyone who retracts a confession to stealing, committing zin, or drinking wine.73 The reason, Shfi explains, is the introduction of doubt (shubha) of the type that is add-averting.74 Here, finally in the evidentiary context, Shfi has mentioned shubha. The context gives us an idea of what he means by the term. He does not mean doubt about what the criminal elements are; those have been clarified by tradition. Thus, he does not use the term to refer to circumstances of textual or interpretive ambiguity, as later juristseven within his own schoolwould do;75 for him, the law was clear, and he took
matters involves issues considered unique to womens areas of competence, such as issues of gender, childbirth, etc. For a discussion of the categories and their social significance see Fadel, Two Women, One Man, 185ff.
72

Shfi, Umm, 7:446. Specifically, he notes that punishment may also be due if a person admits to drinking wine, saying, I drank an intoxicant, or admits to drinking from a container from which he knew others had drunk and had become intoxicated. If there is some doubt about whether the substance was intoxicating (fa-amm idh ghba manh), then neither add punishment nor discretionary punishment (tazr) is due. His act, Shfi says, was either a add crime or [the substance was] permissible and punishment is only due with certain evidence (innam yuqab al-ns al l-yaqn). Ibid.

Ibid., 7:327; cf. ibid., 6:388 (specifying that the thief is to pay the value of the stolen item but that he is not subject to amputation), 390 (specifying that punishments of flogging or stoning do not apply to those who retract confessions of zin even in the midst of carrying out the sentences).
74 75

73

Ibid., 7:327 (shubhatih bih).

For instance, he said in no uncertain terms that judges should not regard marriages of disputed validity to be instances of shubha by which the add punishment for invalid marriages should be avoided. See ibid., 7:361-2 (qla l-Shfi: wa-qla minhum qil fa-idh akamta baynahum abalta l-nik bi-l wal wa-l shuhd wa-huwa jiz baynahum? qultu: naam.). Later Shfis would reverse course completely, deeming the same disputed marriages as legitimate bases for add-averting shubha, as noted succinctly in Shfi works of legal maxims. See, e.g., Suy, Ashbh, 237. For further discussion, see Chapter 4. 213

pains to provide the bases for his opinions. Thus, stealing from a secure location, knowingly marrying a close relative, drinking intoxicants, and other criminal acts justified by appeal to foundational texts are prohibited and constitute add violations. Stealing from a location that has not been secured, marrying a close relative unwittingly, and other situations where the substantive and mens rea elements are not met do not constitute add violations. For Shfi, there could be no add liability because basic add elements for a completed crime would not have been met without doubt; and on that score, he saw no room for interpretation, mistake, or debateused by other schools as a backdoor to udd avoidance. Rather, Shfi saw shubha as doubt about whether the known elements of the crime, as he has defined them on the basis of authentic texts, have been completed. In other words, if there is uncertainty about whether the law was violated, then neither a add sanction nor a discretionary punishment (tazr) is due.76 A given act, he concluded, is either a add crime or [it is a] permissible [act]. Punishment is only due for violations of add crimes on the basis of absolutely certain evidence.77 As noted, instances of udd avoidance based on a failure to complete any of the criminal elements indicate in one way the notion that there was no add liability in the first place. From another perspective, Shfis treatment demonstrated how Muslim jurists refer to such instances as udd avoidance or add-averting shubha, that is, when they were considering or directing judges to consider whether add liability is due. These latter instances are to be distinguished from the other cases, above, where Shfi
76 Ibid. (here: whether the substance met the definition of the criminal element requiring intoxication for drunkenness (fa-amm idh ghba manh)).
77

Ibid., 7:446 (innam yuqab al-ns al l-yaqn) (quoted above, note 72). 214

specified that an offender had incurred add liability at the time of the crime; in those instances, add liability would not always be removed, such as instances of trying to change the facts after the verdict as in afwns Case, or of adopting a stance of lenience as the defendant argued in the Case of the Drunken Orphan or as Shfi accused the anafs of doing on the issue of repeat offenders. For Shfi, the only add-averting shubha then was some deficiency in the evidence required to establish the textuallydefined crimes; he held that it enters at the stage of proof, which is the province of the udd maxim and udd avoidance. C. Early Shfi Shubha The thrust of Shfis jurisprudence, including his criminal jurisprudence, was about certainty, not doubt. He aimed at getting the rules of add liability right and declared the mandatoriness of udd imposition whenever acts of wrongdoing met the definitional elements of crimes contained within certain texts. For him, issues of udd avoidance typically arose in evidentiary matters when it came to proving the crime or assigning culpability. There, the type of doubt constituting add-averting shubha typically arose only once a judge started interrogating the circumstances surrounding the act and inquired as to whether the elements were in fact completed. Despite his apparently procedural and narrow stance toward shubha and udd avoidance, Shfi arguably laid foundations for expanding the definition and scope of both. For example, when considering cases of theft by fraud (for which there is properly no add liability because of the missing element of a taking from a secure location), Shfi contemplated the propriety of udd avoidance. For him, to void add liability in such cases is a narrow reading of a adth-text outlining Umars ruling that

215

add liability applies only to servants who take from their masters. He acknowledged a broader reading as well, commenting that the rule should probably be extended out of precaution (al l-itiy) to other cases: spouses who take each others property, children who take their parents property and vice-versa, anyone who takes property from someone else living in the same house, or people who borrow property held in security (wada) but then deny that it belonged to the original owner. In short, any situation where access to property is shared or where locations are not or cannot fully be secured should translate into a rule of udd non-liability or avoidance. The thread common to all of these situations, Shfi maintained, was that the goods are not taken from a secure location, but by fraudulent means (khiyna). To be sure, that he deemed there to be no add liability resulted from his reasoning that one of the definitional elements of the crime had not been met.78 Yet his broad reading was later seized upon and transformed into an instance of shubha and udd avoidance that would crop up throughout Islamic criminal law in more developed doubt jurisprudence in the Shfi school. * * *

A similar approach to udd imposition and avoidance endured amongst Shfis followers for some time, so far as we can tell. His follower Muzan (d. 264/878) offers minimal commentary in an abridgement of Shfis major legal treatise, the Umm. One relevant comment concerns questions of add liability in instances of spousal theft from one another, which Shfi had listed as a case of fraud for which add liability typically should be removed. Muzan points out that Shfi had earlier
78 Ibid., 7:782 (noting that the same applies to khalasa, citing a case wherein Zayd b. Thbit said: laysa f khalasa qa). 216

held, as recorded elsewhere, that spouses can be add-liable for stealing from each other if each partner has attempted to secure their belongings.79 The immediate effect of that statement is to further restrict the instances in which add liability can be voided, following Shfis narrow reading of the reach of the udd maxim. But the jurisprudential effect is in fact to follow Shfis trend of insisting on add liability in areas of substantive criminal law, where the texts dictate the punishment, but to allow for the possibility of udd avoidance in criminal procedure and evidence. Eventually, the udd maxims scope expanded radically in Shfiism, becoming more and more central to the jurisprudence of the Shfi school. It appears prominently in fiqh works descendant from Shfis treatise Umm on substantive criminal law as well as in manuals of judicial procedure and political theory.80 The first noticeable expansion of the principle began with Mward (d. 450/1058) over two centuries after the school founders death. The maxim also came to feature as the central principle of criminal law in collections of legal maxims beginning in the 7th/13th century.81 This expanded jurisprudence is covered in the next chapter.

79 Muzan, Mukhtaar, 9:279 (hdh aqyas ind) (citing Kitb ikhtilf Ab anfa wal-Awz). We have no record of divergence form his student Rab, who transmits the Umm or for many of the Shfis before Mward (d. 450/1058).
80

See Mward, al-Akm al-sulniyya, 254 (attributing the maxim to the Prophet and folding it into his treatise on political theory); Ghazl, Was, 6:443-4 (quoting the standard formula of the maxim and attributing it to the Prophet as a adth). For further applications, see, e.g., Shrz, Tabira, 1:485 (indicating that the Prophet said both idra l-udd ... bil-shubaht and ... m staatum); al-Qaffl alShsh, ilyat al-ulam, 8:7-15; Rfi, Azz, 11:144-50 (citing the udd maxim as a prophetic adth, e.g., on p. 145); Nawaw, Minhj, 3:206; idem, Majm, 18:375, 385; idem, Rawa, 7:306-13; Shirbn, Mughn almutj, 5:442-5; Ibn ajar al-Haytam, Tufat al-mutj, 4:118-21 (citing the udd maxim as a prophetic adth, e.g., on p. 118, and as a khabar a on pp. 119-20); Bjr, shiya, 2:383-90 ([f] l-Qida f lshubaht al-dria lil-udd: on the maxim regarding udd-averting doubts or ambiguities). [All discussed in Chapter 1, notes 82-84 and accompanying text.] For Shfi treatises on maxims including the udd maxim, see, e.g., Ibn Abd al-Salm, Qawid, 2:27980; Suy, Ashbh, 236-38. 217

81

III. Early anafs

As intimated above, Ab anfa and his associates were some of Shfis prime targets in a campaign to bring order and clarity to the law through textualism. Shfi accused Ab anfa of operating on the basis of unbridled and baseless personal opinion (ray). Shfis forceful argument for centering law on authentic traditions was meant to sift through and resolve juristic differences about the law that he took to be rooted in the faulty interpretive premises of Ab anfa and other jurists. Among other complaints, that is, he saw Ab anfa as inventing principles of law that went far beyond the text, if indeed they were based on any textual premise at all.82 * * *

We saw above that the Iraqi jurists, and anafs in particular, recognized the udd maxim widely as a well-known criminal law principle.83 Theirs was an exceptional legal school in terms of public standing in that they early on enjoyed political power and state patronage under the early Abbsids.84 The political contexts in which they invoked the maxim were special too, as some well-connected jurists arguably invoked the udd maxim to privilege status hierarchies in contravention of the moral imperatives laid out in the legal texts that they themselves purported to follow along with most other jurists. It may be that some state-connected anafs (e.g., Ab Ysuf) and others (e.g., the Mlik jurist Abd al-Malik b. abb) simply were more likely to touch upon issues of udd avoidance connected to high-status individuals
82 Khadduri, Introduction, 42-43.
83 84

See Chapter 2, Section II.

For the background political context in which anafism formed and developed in Iraq, Khursn, and elsewhere, see Tsafrir, Early Spread of anafism (Cambridge, MA: Islamic Legal Studies Program at Harvard Law School, 2004), 20-21, 27-34; Wilferd Madelung, The Early Murjia in Khursn and Transoxania and the Spread of anafism, Der Islam 59, (1971): 32-39. 218

given their connections to political authorities; and it is possible that they intended or saw no foul play. If they did, regardless, the very fact that those cases were recorded means that they were sensational ones worthy of historical mention and thus were likely rare.85 All this notwithstanding, whatever political abuse of the udd maxim there may have been, it did not reveal the anaf jurisprudence of doubt inasmuch as the political context was separate from the juridical one; the former was not based on and did not create adths laying out normative rules. Rather, the adth precedents relating to criminal law focused on norms of judicial subservience and moral anxieties against the political persuasions to the contrary. To shed light on normative anaf jurisprudence, we must look at the legal treatises of the time directlysometimes penned by the same jurists who were purportedly abusing the maxim politically. In their legal treatises, early anafs were not overly concerned with defining shubha as a category. Rather, like Shfi, they were aware of and certainly recognized the udd maxim, but focused on laying out the rules of add liability based on their own jurisprudential standards, at some odds with those of Shfi. As before, we discuss norms of udd imposition versus avoidance in turn, beginning with the anaf approach to rules of imposition. A. udd Imposition 1. Mens rea: Objective Indicia anafs would have objected to Shfis portrayal of them as lenient. In fact, anafs took a hard line in several cases where Shfi rules appear lenient, that is, if
85 See Chapter 2, Section II; cf. Fierro, When Lawful Violence Meets Doubt, 229-33. For an analysis of the standing and institutionalization of the Mlik madhhab in Andalusia under the Western Umayyads, see eadem, Proto-Malikis, Malikis, and Reformed Malikis in al-Andalus, in Peri Bearman, Rudolph Peters, Frank E. Vogel, eds., The Islamic School of Law: Evolution, Devolution, and Progress (Cambridge, MA: Islamic Legal Studies Program, Harvard University, 2005): 57-76. 219

lenience is taken to refer to instances where a schools doctrine holds that there is no add liability. Two examples will serve to demonstrate how, contrary to Shfi, anafs approached evidentiary matters with some manner of objective inquiry that serves to restrict instances of udd avoidance on evidentiary matters. a. Voluntariness: Sexual Coercion In cases of rape, recall that Shfi held that there was never add liability against the victim of rape or the one coerced to rape another person, having read a broad voluntariness requirement into the law. Ab anfa read in a voluntariness requirement as well, but maintained that there may nevertheless be add liability against a male victim where a third party other than the ruler (suln) has coerced a man to rape a woman. anaf commentators argued that, as a matter of fact, coerced zin is inconceivable without the arousal of the man supposedly being coerced; and they took arousal to be an indication of voluntariness. For if someone was truly fearful, they presumed, the fear would overcome their will or ability to have sex.86 Ab anfa held that there would be no add liability for coerced sex when the suln did the coercing because of the power dynamics involved. That is, as the foremost authority ultimately responsible for implementing udd laws, if the suln was the one violating those laws, it was as if the crime had been committed in the absence of any legitimate authority (imm) with jurisdiction over udd matters. 87 That
86 See Ab l-asant al-Laknaw (d. 1304/1887), al-Nfi al-kabr (shar al-Jmi al-aghr), on the margins of Shaybn, al-Jmi al-aghr (Karachi: Idrat al-Qurn wal-Ulm al-Islmiyya 1407/1987), 230 (l yutaawwar ill bad intishr al-la wa-hdh yat al-aw); Qudr, Tajrd, 11:596 (al-khawf yunf l-shahwa wal-intishr fa-lamm wujida minh dalla al khtiyrih). Shaybn, al-Jmi al-aghr, 230. There is some difference about whether Ab anfa made an exception for coercion by the suln (in which case add liability is voided) or not (that is, that the add is due whether the suln or anyone else coerces acts of zin); it is understood that Ab anfa initially held the first opinion, but subsequently adopted the latter. See Qudr, Tajrd, 11:5896-97. For further discussion 220
87

situation would be no different from committing zin in non-Muslim territory (dr alarb), where jurists were agreed that there was no add liability.88 That is, in a Muslim country without a legitimate ruleras marked by upholding the udd lawsthere could be no add liability for the effective leaders coercion of add violations. One later anaf scholar explained that there was no room for arguing that the udd maxim applies on the notion that there is some measure of shubha created by the sulns involvement.89 The add sanction is not to be avoided, he maintained, because we do not acknowledge that there is any shubha;90 the objective indications of voluntariness (i.e., arousal) meant that the successful perpetrator of rape could not use coercion as an excuse.91 Ab anfa agreed with Shfi then that voluntariness was a criminal element of rape and that coercion removed add liability generally; he just disagreed as to whether coercion to rape could ever be truly involuntary. This was a dispute about
of this problem and coercion in Islamic law more generally, see Khaled Abou El Fadl, The Common and Islamic Law of Duress, Arab Law Quarterly 6, 2 (1991): 121-59, esp. 147-48 (on rape). Qudr, Tajrd, 11:5896. Laknaw further justifies the rule on the bases that the coerced individual has no authority to which to appeal and that if a person feared for his life without any other option other than to obey the suln even in committing a criminal act, that level of fear creates the possibility that the act was fully involuntary. He also notes that the rule changed from Ab anfas time, when there was a single suln, to subsequent timesas early as the lifetimes of Ab anfas two students (to which he attributes the second opinion ascribed to Ab anfa himself)up until Laknaws own lifetime. Very quickly, the fledgling empire saw multiple regional rulers (mutaghallib), which meant that there was no clear suln in charge of udd crimes and the rule of add avoidance should apply uniformly. Laknaw, Nfi, on the margins of Shaybn, al-Jmi al-aghr, 230. See ibid., 11:5897 (citing the udd maxim in its standard form: idra l-udd bil-shubaht, and referring to the potential category of shubha as shubhat al-Imm). Interestingly, Qudr comes up with a creative compromise that softens the hard line of this broad rule of udd imposition. add liability is not removed, he says, and the add imposition is thus mandatory. Yet, it was excusable for the legal establishment not to impose the punishment because there was no one with the legitimate political authority to sanction it. In that sense, the act in question does become like committing zin in nonMuslim lands (dr al-arb), where add liability remains even though the add sanctions are not applied. Ibid.
90 91 89 88

See ibid. (l nusallim wujd al-shubha). See ibid. (al-mukhtr l yuaththir fh al-ikrh). 221

facts. Based on their understanding of human biology, Ab anfa and his disciples doubted that any man could be coerced to have sex inasmuch as they deemed arousal tantamount to voluntariness.92 This, rather than textual definitions devoid of physiological or political contexts, undergirded his position in favor of udd imposition even in seeming cases of coercion involving sexual violence.93 * * *

Ab Ysuf, Shaybn, and subsequent anafs came to change this rule to cover even cases where the suln did the coercing. For them, times had quickly changed to make the initial rule with the suln as exception obsolete. Not long after Ab anfas death, ongoing rivalries and rebellions called into question rules based on an idea of a political order with a single suln. Despite the universal Muslim ideal that recognized a single ruler at any given time, the ideal was not reality.94 From as early as the First Civil War (35-40/656-661), beginning with Uthmns (d. 35/656) assassination after which various tribal and political factions struggled over who had the legitimate right to become reigning caliph, it was rarelyif everthe case that a single suln exercised the type of strength and authority over the Muslim community that Ab anfas ideal

92 Ibid., 11:5898 (min ab al-dam idh khfa zla intishruh fa-lamm lam yazul alimn annahu ghayr khif wa-qawluhum annahu qad l yazl al-intishr maa l-khawf amr ndir jarat al-da bi-khilfih).
93

For further discussion, see Abou El Fadl, The Common and Islamic Law of Duress, 127-29 (describing the anaf distinction between compelling duress, which vitiates voluntariness and where liability is removed, and pressure that is not as compelling or constrainingincomplete compulsion where liability is not removed). Coerced sex would be a matter of the second category. One suspects that another rationale is at play. Muslim jurists held that rape is always a criminal act; the person being coerced should choose to sacrifice themselves rather than the rape victim. See ibid., 148 note 112. As one scholar has remarked, the surprising element of political leadership in early Muslim lands was not that it shifted easily from one ruler to another given the vastness of the empire from an early period and the competing factional claims to leadership, but the frequency with which those in effective control over the community sought to maintain the fiction of a single caliph, who symbolized the unity of all Muslims. See Mottahedeh, Loyalty and Leadership, 19. 222

94

ruling had contemplated.95 Jurists following him then equated the sulnic and nonsulnic brands of coercion: they held that there was add liability for any sort of rape in either case.96 In sum, anafs read a voluntariness requirement into the law, but initially through a narrow lens that hinged it on types of political power and authority. For them, arousal was the type of objective indicant of voluntary intent that made avoiding the add sanction difficult. The changed ruling taking the contrary view came to accommodate shifts in politics rather than the factual basis for the law itself. Had the political system remained under a unitary caliph and their science gone undeveloped (as indeed the latter seems to have done in later anaf texts adopting Ab anfas early view), more early anafs would have maintained a narrow rule of voluntariness, based on objective indications that worked to restrict the scope of udd avoidance in this area. b. Knowledge: Sex with a Prohibited Partner Alongside a narrow voluntariness requirement, Ab anfa read a knowledge requirement into the law, as had Shfi. As expected, Ab anfa differed in his definition of the knowledge requisite to trigger add liability. Ab anfa generally held that there was no criminal liability if a perpetrator of a criminally wrong act
95 Laknaw, Nfi, 230 (noting that the rule on imposing a add for coercion by the suln is either one of imposition or avoidance based on differences in circumstances of time and place, and further observing that even during the time of Ab anfas two principal disciples, Ab Ysuf and Shaybn, usurpers claimed the type of coercive authority that a single suln had enjoyed during Ab anfas time). Arguably, Abbsid caliphs like Hrn al-Rashd were far more powerful than the earliest caliphs, heading a centralized state that appointed governors, judges, and other officials. Yet, the diffusion of the empire and constant contests for power with relative autonomy still makes even strong Abbsid caliphs less powerful and their authority less singular than the first four caliphs and those immediately following them. For further discussion, see above, note 88.
96

See Qudr, Tajrd, 11:989 (attributing the new opinion to Ab anfa as well). 223

mistakenly thought his actions were licit, that is, when there was no harm against the individual claims of other parties or victims. For instance, if a man divorced his wife three times and then had sex with her during her divorce waiting period, Ab anfa ascribed no add liability to the man if he claimed that he thought that she was licit for [him].97 Likewise, if a man sleeps with a slavewoman belonging to a member of his household (e.g., his mother, father, son, or wife), saying that he thought she was permissible, he would incur no add liability.98 In this way, Ab anfa too readily acknowledged the element of knowledge required for criminal liability. However, he differed radically from Shfi and most other jurists concerning the requisite knowledge for acts involving incest. For Ab anfa, if a man had sex with a woman found sleeping in his house, perhaps even in his bed, claiming that he thought she was permissible, he would incur add liability. The doctrinal reason, later jurists explain, had to do with the individuals duty to ascertain the law: instead of having sex with a woman and claiming legality, the man could have simply asked about her identity if there was reason at all for him to harbor any doubt. Failure to ask therefore
97 Shaybn, al-Jmi al-aghr, 228 (anantu annah taull l).add liability is canceled in a similar scenario if a man has sex with his wife after he has told her, you are free (khaliyya or bariyya) or in charge of your own affairs (amruki bi-yadiki) [i.e., after two divorces], and she interprets that as the initiation of divorce, from which point she enters her divorce waiting period. Here, there is no liability even if the husband says that he thought the action was not legal (Almtu annah alayya arm), ibid. Laknaw explains that this has to do with a difference of opinion among the Companions concerning whether figurative speech (kinya) could affect divorce. Laknaw, Nfi, on the margins of al-Jmi al-aghr, 228. Here, it may be that Ab anfa was recognizing that difference, but given the thrust of his other opinions not recognizing interpretive shubha, it is more likely that he simply came down on the side of the opinion that figurative speech did not affect the divorce. Ibid., 228-29 (noting though that paternity for any resulting child will not be established, except for the case of someone who has slept with the slavewoman belonging to his son, in which case it will be established though he is to pay his son for the value of the slavewoman). He does not cite it, but this rule likely comes from the fact that there is a legitimate textual claim for the mans supposition that sex with the sons slave woman was licit, namely the common adth that all other jurists cite (and that later anaf jurists cite as well) in which the Prophet told a son that your father owns [or has rights over] you and your property: anta wa-mluk li-abk. Thus, the footnote here is incorrect explaining that it is because fathers actually own their sons property. 224
98

would not excuse him from the add liability incurred if it turned out that she was not in fact licit to him.99 Beyond legal doctrine, this rule amounted to one of strict liability; and it had to do with notions of sexual morality in a sensitive area of law. Incest was regarded by that community as especially despicable, andwhere possibleAb anfa and his associates circumscribed instances of udd avoidance whenever incest was involved.100 Here, that circumscription translates into strict liability; the knowledge requirement that ordinarily applied did not apply here, and a strict rule of udd imposition was in place instead. At bottom, Ab anfa favored a rule of strict add liability and a dropped knowledge requirement on rational-moral bases. For him, an opposite rule would infringe on certain moral imperatives that he saw as weighted more heavily in the texts than others, in contrast to the equal treatment that Shfi might have given to them. * * *

anafs also diverged from Shfi on issues of mens rea. Against Shfis intentionality requirement (especially for defamation), anafs held that no such element was required. They viewed the question of add liability for defamation as an objective inquiry: regardless of intent, what were the effects of potentially defamatory statements? For example, if a person said, you are not from [a certain] tribe, Ab anfa would not necessarily consider this defamation even if the addressee was from
99 The material legal difference in categorization is drawn out by later scholars: This is a mistake of fact, not a mistake of law, as in the previous cases where anafs and Shfis alike are willing to cancel add liability. Here, the duty to ascertain the state of affairs before acting is no more complex than simply asking the person in front of them before engaging in the act; in the other cases, it requires asking a legal authority. See Qudr, Tajrd, 11:5899. I did not find this rule in contemporaneous works of Shaybn or Ab Ysuf, nor in Jas Akm, or Dabss work, Isrr. Later anafs uniformly cite and discuss this rule, attributing it to Ab anfa and offering extended explanations; Qudrs discussion, for instance, runs from 11:5899 to 5907. 225
100

the tribe in question (and even though Shfi would disagree if the person intended to deny the defamed persons lineage). Technically speaking, in Ab anfas view, a person is born of two parents, not the tribe. A mere statement of possible lineage denial then does not in fact have the effect of denying the lineage.101 add liability therefore should not attach. This approach to defamation can have mixed results sometimes tending toward udd avoidance, as above, but other times tending toward udd imposition. 2. Finality On another score, early anafs also took a stance that can be perceived as more severe than the Shfi one when it comes to determinations of whether add liability continues once a convict has repented. While Shfi held that repentance generally does remove add liability, anafs held that it generally does not.102 One basis for the anaf doctrine was reliance on Mizs Case along with other reported instances of stoning, in which the Prophet is said to have ordered a add sanction even after the defendant had repented or expressed remorse.103 Additional reasons related to what
101 Ab Ysuf, Ikhtilf Ab anfa wa-Ibn Ab Layl, 163 (noting that rival Irq judge and jurist Ibn Ab Layl would impose the add here). For other instances of mixed rulings of udd imposition and avoidance for qadhf, see Shaybn, al-Jmi al-aghr, 235-38. Cf. Qudr, Tajrd, 11:5955-56 (al-tar bil-qadhf)). Exceptions for them included repentance after apostasy and highway robbery, for which Qurnic texts specify as much. For a discussion of the Qurnic bases, see below. This is one area that challenges the notion that anafs ignore text in favor of rational principles (al, ul). As a jurisprudential matter, they purport to reject statements posing as adths when those statements contradict known and settled texts from which they extract normative rational principles; this is a way of mediating between adth of disputed reliability and in some ways of avoiding the issue of authenticity, as noted by Shamsy. Here, their rational principle is qualified by textual bases, while the Shfi rule is the opposite of what one would expect on the basis of the texts. For further discussion, see, Abd al-Majd, Ittijht, 460-62 (describing Ab anfas position as to the authoritativeness of adth); cf. Shamsy, From Tradition to Law, 19-24. See Ab Ysuf (d. 182/798), Kitb al-thr, ed. Ab l-Waf (Hyderabad: Lajnat Iy al-Marif alNumniyya, [1981]), 157 (reporting and commenting on the Case of Miz, noting that add was imposed and Miz had repented, though without commentary on the relationship between the two facts); cf. Qudr, Tajrd, 11:5949-50 (also citing the case of the woman from the Ghmid tribe). 226
103 102

anafs took to be the moral values behind the law. In the first place, they said, udd sanctions were legislated for deterrence;104 if repentance always removed add liability, every perpetrator would express remorse and udd sanctions would never apply.105 This of course would run the risk of violating the principle of neglecting udd laws completely (tal al-udd), an undercriminalization about which jurists were just as concerned as they were with overcriminalization. Secondly, the Prophet said that udd sanctions serve as spiritual expiation for perpetrators;106 since the requirement for expiation is not canceled by repentance in other contexts, by analogy, neither should it cancel add liability.107 These examples should suffice to demonstrate that the debates amongst early jurists were not about how lenient in criminal matters one school could be with regard to another. Instead, these jurists were concerned with delineating the circumstances warranting udd imposition and udd avoidance. In the above instances surrounding mens rea and other elements proved at the evidentiary stage, anafs often appear to more easily favor rules of udd imposition than Shfi: they both recognized mens rea requirements of voluntariness, knowledge, and intentionality; but they constructed areas of strict udd liability when other core moral values upon which they placed interpretive or substantive primacy are implicated. The divergence in rules of udd imposition versus avoidance then stems from divergent jurisprudential arguments and
104 Ab Ysuf, thr, 157 (al-udd wuiat lil-zajr).
105 106 107

Ibid. Ibid. (al-udd kaffrt li-ahlih).

Ibid. (citing, for the textual basis for avoiding the add sanction in cases of apostasy, Qurn, 6:38: qul lilladhna kafar in yantah yughfar lahum m qad salaf, and the adth: al-islm yajubbu m qablah). See also Qudr, Tajrd, 11:5953 (citing, for the same purpose, Qurn, 6:38, a adth, and a rational argument that add liability is removed by repentance). 227

interpretive principles, as well as the primacy that each accords to certain moral and jurisprudential values. For Shfi, judicial subservience to the dictates of authentic texts through following procedural interpretive processes was paramount. Abu anfa balanced other substantive values against those concerns. B. udd Avoidance 1. Defining Criminal Elements a. The Drinking Debate Like Shfi and other jurists, Ab anfa made determinations about the mandatoriness of udd imposition and avoidance by first defining the criminal elements for drinking and other crimes. As noted, each jurist relied on traditions, but they read them quite differently. Where Shfis approach was a textualist one that relied on definitions given by the traditions themselves, Ab anfas approach was contextualist and relied on linguistic arguments as understood by convention and the rational limits of a given proposition.108 When it came to the dispute over the prohibition on intoxicants, the 2nd/8th century saw considerable controversy surrounding the question whether Islamic law prohibited intoxicants other than wine (khamr), as represented most famously in an interpretive debate between Shfi and Iraqi jurists. The argument boiled down to a methodological dispute that centered on the meaning of khamr: was it to be interpreted in light of existing linguistic and social conventions or purely as defined in the texts

108 See Shamsy, From Tradition to Law, 14-24. 228

themselves? Shfi took the latter view while the anafs took the former.109 The debate was an indication of an ongoing dispute between two camps about approaches to law that had yet to be resolved; it is significant for our purposes because it had consequences for criminal law and its doubt jurisprudence. anafs argued that a beer-like drink called nabdh was widespread during the time of the Prophet in Medina, in contrast to wine, which was in short supply.110 When the Prophet first prohibited wine, the Companions differed as to whether the prohibition encompassed potent nabdh as well, according to a anaf reading of history. The general tenor of the sources suggests that it did not. Prominent Companions like Umar and Ab Dharr, many Successors, and most jurists in Iraq reportedly continued to drink it, none thinking that it was prohibited and none calling it khamr.111 By the end of the second century, leading Medinese jurists were against it,112 but most Irq jurists permitted it. Only a minority of Irq jurists argued, along with Shfi, that intoxicants other than wine were prohibited by Islamic criminal law. The well-known example is the prominent Kufan jurist Ibn Shubruma (d. 144/761).113 Like Shfi, he quoted this and several other traditions that he deemed authentic textual

109 See ibid., 14-20, 56-71 (describing Shfis linguistic turnhis theory that the Qurn is linguistic in nature in that its language and meaning are self-sufficient and self-clarifyingand contrasting that view with anaf and Mlik views, respectively, of a linguistic dialectic or of undetermined language).
110 111 112 113

Ja, Akm al-Qurn, 1:385. Ibid. See, e.g., Sann, Mudawwana, 7:2459 (reporting Mliks opinion defining intoxicants as khamr). Wak, Akhbr al-qut, 512-27, 557-82, esp. 567 (s.v. Ibn Shubruma). 229

proofs to resolve the matter.114 In particular, he too held that all intoxicants were prohibited based on the adth that anything that intoxicates is khamr.115 But the majority of Iraqi jurists did not define the add for drinking to encompass nabdh. Ab anfa and his circle permitted that drink (even though some reported that the majority of the jurists of the time or the general community (here: umma) was against it).116 His teacher Ibrhm al-Nakha (d. 96/717) regarded it as blameless,117 as did his student Ab Ysuf (d. 182/798).118 Several other Iraqi judges did as well, including many outside of Ab anfas circle. Ab anfas rival Ibn Ab Layl (d. 148/765) reportedly drank nabdh liberally, andpredictablywas of the opinion that it was permitted;119 the famous judge Shuray (d. ca. 76/695-6 or 80/699-700) permitted it as well,120 as did another famous judge Shark (d. 177/793-4).121
114 He narrated some of the same traditions as did Shfi to that effect. See ibid., 516-17, 523-24 (listing several traditions with multiple chains, including the following: (1) Whatever intoxicates is khamr (m askara fa-khamr; (2) Whatever intoxicates is arm (m askara fa-arm); (3) Every intoxicant is arm and every intoxicant is khamr (kull muskir arm wa-kull muskir khamr); (4) Every drink that only increases in excellence upon letting it sit is arm (kull sharb l yazd al l-tark ill jawda fa-huwa arm); (5) Khamr is per se arm, in small quantity and in large quantity, as is any other drink that can intoxicate (urrimat al-khamr bi-aynih qalluh wa-kathruh wal-sakr min kull sharb) (multiple chains, multiple times); (6) that raisin nabdh (nabdh min al-zabb) is khamr; (7) that Ibrhm [al-Nakha] permitted nabdh even though the umma [practice] was against it (rakhkhaa f l-nabdh wal-umma al ghayr dhlik) (p. 524). Ibn Shubruma apparently used his office as judge to enforce his views, with the approval of the governor, s b. Ms. One report has it that the governor wanted to prohibit nabdh, but was told at one point that it was impossible because Kufas faqh (Ibn Ab Layl) permitted it. Ibid., 576. Another report has it that Shuray, the leading Irq judge after Ibn Shubruma liberated the community from the latters hard line against nabdh after his death. See ibid., 523 (najjn Shuray bad mawtih).
115 116

Ibid.

Ibid., 524 (rakhkhaa f l-nabdh wal-umma al ghayr dhlik). Alternatively, this means that they simply did not follow the permission) See Ab Ysuf, thr, 224 (reporting anecdotes where Ibrhm and Ibn Masd drank it and noting that they used to send a servant to the market to buy nabdh in khawb [s. khbiya, defined as al-jurra alakhma, meaning a jar that has nabdh in it]). Ibid., 224-26. Wak , Akhbr al-qut, 652. On his life and judicial decisions, see ibid., 650-57, 678. By his time, there was apparently some push back, as it has been noted that people used to decry and talk about him (ankar wa-takallam fh) for drinking nabdh. See Joseph Schacht, art. Ab Ysuf, EI2,1:164.

117

118

119

Wak, Akhbr al-qut, 573-82 (s.v. Ibn Ab Layl); Joseph Schacht, art. Ibn Ab Layl, EI2, 3:687. The reports of his drinking capacity are so exaggerated that they verge on the ludicrous. Some say that he 230

On what basis did these jurists argue that drinking nabdh did not incur add liability when Shfi was so sure of the contrary, based on what he deemed to be a host of authentic traditions? anaf jurists disagreed fundamentally with Shfis approach to the traditions, not his reliance on them. Their divergent opinion amounted to an attack on Shfi-style textualism, aiming to show that texts did not speak for themselves and that a proper knowledge of the law required a host of other distinguishing principles to properly interpret the foundational legal texts and extract the proper legal rules.122 According to anafs, the traditions that Shfi and Ibn Shubruma trotted out actually indicate that nabdh was not prohibited in the law. First, drinking was a widespread practice and thus a matter of general community concern (umm al-balw); if it were prohibited, in light of its regularity, the text would have prohibited it through a clear statement. Further, if there were some blanket prohibition against nabdh, it would not have been on the basis a few single, isolated adths that later adth-minded jurists could use strategically as they sought to amplify the import of isolated adths, as they accused Shfi of trying to do. Rather, according to a well-known
never let anyone give testimony unless they drank nabdh and always had a few glasses before going out to judge himself, see Wak, Akhbr al-qut, 576, 578.
120 121

See Wak, Akhbr al-qut, 372 (il boiled to half of its essence), 523.

See ibid., 594; see also ibid., 590 (reporting that, in response to a group of Medinese who prohibited nabdh, Shark ruled that there was no bar to drinking it (l bas bih)), 593 (noting that he permitted people to drink it if it agreed with them but advised them not to drink so much that they got drunk). The same exaggerated story that is told about Ibn Ab Layl is told about Shark: that he never used to judge unless he had three helpings of nabdh (aqd) to the point that he mixed up the court proceedings, and that he even composed a poem in its praise. Wak, Akhbr al-qut, 595-96, 600.
122

For a more detailed discussion, see Abd al-Majd, Ittijht, 61-67 (on basic differences between traditionists and Irq jurists who adopted ray as a type of pragmatic reasoning), 246-54 (traditionist criteria for authentic adth and the anaf and Mlik additions to those criteria: shur al-muaddithn f l-adth al-a wa-m yufuh al-Anf wal-Mlikiyya alayh), 460-62 (on Ab anfas stance toward adth). 231

jurisprudential principle accepted by all schools, the prohibition, if central to the law, would have been made widely known such that knowledge of would have been reflected in community practice (tawtur).123 Second, anafs maintained, Shfis adths were contradicted by other, more reliable ones indicating that there was no universal acceptance of the proposition that any intoxicant is wine (khamr), and therefore forbidden. If adths stating as much were authentic, they held, then khamr was to be taken in a figurative sense so as not to contradict the other certainly authentic traditions.124 For example, there is the adth relating that a drunken man was brought to the Prophet to be punished; but the man said that he had been drinking a mixed drink (khalayn), which is a kind of fermented beverage made from the dates of two different types of trees.125 The fact that the Prophet had to prohibit drinks of this type on a case-by-case basis was an indication that no one understood each component to be wine (khamr), and thatmore broadly the word khamr did not literally encompass every intoxicating drink.126 Moreover, anafs argued that the illustrious Companion-jurists Ibn Masd (d. 32/653), who is said to have brought the law to Kfa and served as its first judge, permitted nabdh. If a prohibition on it had ever been a matter of consensus, even in a past generation, it would have manifested at least amongst the Prophets Companions and their times.127
123 Ja, Akm, 1:387.
124 125

Ibid.

For the adth, see al-kim al-Naysbr, Mustadrak, 4:416, no. 8129; Bayhaq, Sunan, 8:317, no. 17,301; aw, Shar man al-thr, ed. Muammad Zuhr al-Najjr, Muammad Sayyid Jd al-aqq, and Ysuf Abd al-Ramn al-Marashl (Beirut: lam al-Kutub, 1994), 3:156 (adth cited in Ja, Akm, 1:386, 387). Cf. Qudr, Tajrd, 12:6080.
126 127

Ja, Akm, 1:386. See Wak, Akhbr al-qut, 594. 232

Finally, for anafs, there was enough discrepancy in the sources touching upon the legal-theological consequences of drinking non-wine intoxicants, even amongst the Shfi jurists who otherwise tried to equate the drinks, to support the point that there was no prohibition of any beverage other than wine (khamr). Accordingly, jurists deemed those who declared lawful what God had unambiguously prohibited to be unbelievers (kfir, pl. kuffr). This included anyone who considered wine (khamr) to be permissible in light of the clear statement against it in the Qurn. Yet those who deemed nabdh and other non-wine intoxicants to be lawful were simply called wrongdoers (fsiq, pl. fussq), even by Shfis, which logically implies that not even they considered nabdh-permitters to be unbelievers given the possibility of a different interpretation.128 Drinks that are not actually khamr, then, are called khamr in a figurative sense (tashbh) when they intoxicate, not because they have the capacity to intoxicate. All of this should serve to prove the point that the prohibition on wine (khamr) is specific to intoxicating drinks made of grapes, and the application of khamr to any other drink is figurative (majzan).129 In the end, the anafs concluded, there is no add liability for drinking nabdh because it did fall within the four corners of the textual prohibition against wine and did therefore satisfy the definitions of the criminal elements for that add crime. Notably, both Shfis and anafs relied on texts, but the latter group attempted to extract a rational principle to apply in every situation based on a combination of reason and conventional meaning. Shfis, by contrast, looked to other texts to define
128 Ja, Akm, 1:387. The Shfi accommodation of the anaf divergent interpretation (ijtihd) was socially necessary here to include anafs and their followers inrather than summarily excommunicate them fromthe community of the faithful.
129

Ibid. 233

the text, and excluded the figurative and conventional meanings that went beyond it as picked up and advanced by the anafs. This is but an example of a methodological rift between anaf and Shfi approaches to law and legal interpretation.130 b. Timeliness and Legal Effects As for other criminal elements, Ab anfa took a similarly pragmatistrationalist view of the texts with an eye to actual consequences or legal effects of certain acts. An illustration is found in his treatment of theft and what happens when the owner gifts an allegedly stolen item to the accused thiefrecalling afwns Case. Ab anfa held that the gift removes add liability because it transforms the legal effects of the ownership interest such that the criminal elements of theft are no longer complete.131 One explanation is that the gift plus the acceptance of it satisfies the legal requisites for transfer of ownership; the transfer removes add liability.132 Moreover, the ruling that add liability is due is merely a presumption (al), contingent on all requisite elements for full criminality being satisfied. When one of those core elements changes, so does the presumption.133 To clarify with respect to another crime, as a later anaf jurist outlined, consider the requisite elements for add liability surrounding defamatory statements of sexual impropriety (qadhf): (1) a defamatory speech act
130 Similar rifts are apparent in rulings concerning other areas of criminal law, such as male sodomy and bestiality. For Ab anfa, neither warranted the add sanctions, because they did not fit the conventional meaning of zin, which he understood to be sex between a man and a woman. See Shaybn, thr, 230 (noting that Ab anfa imposed discretionary punishments (tazr) and imprisonment for such acts but that Ab Ysuf and Shaybn held that the add was due). On apostasy, see, for example, Qudr, Tajrd, 11:5910-16, esp. 5912 (for the linguistic argument); for bestiality, see ibid., 11:5917-18. Ab anfas two disciples disagreed on the issue of acts of male sodomy, siding with the Shfi position that the add sanction was due. For a full discussion, see Lange, Justice, Punishment, 200ff.
131

See Qudr, Tajrd, 11:5985 (noting that Shaybn adopts Ab anfas position, but that Ab Ysuf takes the opposite view). See ibid., 11:5985. See ibid. 234

132 133

against (2) a chaste woman. If proved, the act of defamation obligates the add punishment of eighty lashes. But if someone commits defamation against a chaste woman at time A, and if the woman in fact subsequently commits zin at time B before trial or before the sentence for the defamation has been carried out, the presumption of add liability that was initially due is due no longer. This is because the elements are no longer satisfied.134 Likewise, theft is associated with two legal consequences: the add penalty (wujb al-qa) and return of the stolen item (radd). If the stolen item is gifted to and accepted by the thief (al-hiba wal-qab), add liability is removed. That is, there is no legal basis for pursuing the full punishment of hand amputation; as the element of nonownership of a stolen item has changed with the transfer of ownership, there is no obligation to return the item. It was as if there was no theft in the first place.135 anafs illustrate this point with reference to afwns Case in a reading dramatically opposed to that of Shfi. Recall that in his discussion of the case, Shfi added a timeliness element to the definition of crimesspecifying that the add penalty becomes due when criminal acts are committed, not with respect to changed elements after the fact.136 anafs find a number of fronts on which to attack that view. In the first place, they say, the adth is of unreliable attribution to the Prophet.137 Second, the adth is of uncertain import. It is unclear what the actual outcome of the case was. A number of
134 Ibid.
135 136

Ibid., 11:5985-86.

The major exception is repentance (tawba), which Shfi holds cancels add liabilityas described above. anafs take a stance that can be perceived as more severe than the Shfi one as well.
137

Qudr, Tajrd, 11:5986 (noting that the adth, as narrated in Mliks Muwaa, is mursal, because afwn b. Abd Allh did not narrate from afwn b. Umayya). 235

narrations end with afwn pleading with the Prophet not to cut the thiefs hand on the basis of the gift, to which the Prophet responds if only you had done this before coming to me with him: hall qabla an tatn bih. In all but one version, the report never mentions that the Prophet actually carried out the sentence. The basis for the view that the sentence was carried out is an isolated report by a single narratorwhich makes for a dubious basis for such a harsh rule under anaf principles.138 Even if we were to add that report to the others, the holding of the case is at best simply disputed.139 In such cases, the anafs concluded, the proper course of action would be to suspend judgment until and unless the basis of the report can be determined.140 Even if it is understood from the report that the sentence was applied, the case still would not control the question whether a gift and acceptance of the gift removes add liability because the report says nothing about whether the thief actually accepted the gift.141 Instead, there is nothingcertainly no solid textual evidenceto stop jurists from relying on the prior presumptions (al, pl. ul) that transfer of ownership removes add liability and that the transfer is marked by gift and acceptance.142 The long and short of the matter is that, in determining add liability at least in cases of theft like this one, Ab anfa looked to the offense with respect to the state of affairs and legal effects at the time of the trial or sentence, even after the verdict, not at the time of the theft. As had Shfi, to determine add liability, Ab anfa focused on the
138 Ibid., 11:5987 (khabar al-wid).
139 140 141

Ibid. (ghayr muttafaqa). Ibid. (wajaba l-tawaqquf att yulam al al-khabar). Ibid. (laysa fh annahu aqbaah iyyh).

142 There are several other arguments as well. See ibid., 11:5987-90 (listing other arguments), esp. p. 5987 (analyzing afwns Case).

236

definitional elements of a crimein this case, ownership. But Ab anfa also looked to legal effects in his effort to devise rules that would apply predictably across the board as an alternative to adhering to exceptional adths deemed to be of dubious authenticity and import. Both he and Shfi started with the text but differed on how to approach it. That differenceas we sawaffected how each school regarded the scope of legal maxims, including issues of udd liability, imposition, and avoidance. In addition, Ab anfa appealed to other values that affected this equation as well. A principle value was the primacy of contracts. 2. Primacy of Contracts In Ab anfas view, the laws of contracts often trumped the laws of criminal liability. In one of his rather unique jurisprudential positions, he held that legal permissions that ordinarily flow from a contract are enough to remove add liability even when a contract is materially defective and even where the social consequences are significant. For example, he held that no add liability for zin would normally result from a marriage between two closely related relatives, even though he otherwise viewed incestuous relations to be so odious. For him such marriage contracts were defective and thus voidable (fsid), but satisfied the form of the contract nonetheless. In other words, they created at least the semblance of a contract (shubhat al-aqd), and this was enough to defeat accusations of zin defined as sex outside of any marriage contract. Ordinarily, the law of contract provides some protection for defective commercial transactions pursued on the mistaken belief that they were concluded under color of a valid contract. Ab anfa extended this norm to family law, holding

237

that the semblance of a marriage contract should provide protection as well. In this example, it would exculpate a couple from accusations of zin, even if they knew that they were not valid marriage partners in the first place.143 By deeming knowledge of the defect irrelevant to add liability, Ab anfa was articulating a place of primacy for contract law over criminal law and subscribing to a broad view of the scope of udd avoidance on its basis. He applied a similar logic to situations of merchants having sexual relations with slavewomen held as security. Traditional Islamic commercial law considered slaves to be a form of property and allowed debtors to deposit slavewomen with creditors to assure payment of a debt. As with monetary guarantees, the property in such cases still belonged to the debtor and devolved to the creditor only in case of default. Accordingly, a separate rule permitting master-slave sexual relations did not apply to slavewomen held on security, because there was no full ownership.144 What of
143 Ibn Nujaym, Ashbh, 1:128 (noting Ab anfas rule of add aversion by shubhat al-aqd even when the contracting parties know of the illegality of marrying a closely-related relative (maram) and there is no mistake as to their identities). There is some question whether this permission falls under slave law or contract law (specifically, the law of marriage contract, or family law) within the classical sources themselves. A common reading is the former. See Kecia Ali, Money, Sex, and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period (unpublished Ph.D. dissertation, Duke University, 2002) (concluding that marriage and slavery alike in Islamic law were considered forms of male ownership over women). A more sophisticated view from the sources for early Islamic law is that the master-slave relationship creates the basis for a type of contractual family-law relationship through establishing a legal right of enjoyment called milk, just as does a marriage contract. Milk is often translated as ownership but, in fact, linguistically refers to the legitimate right the right of access or entitlement, see Ibn Manr, Lisn alArab (Beirut: Dr dir, 1997), 6:92 (s. rad. m-l-k), and has been used as such in legal terminology for marriage and other contexts. Further, Motzki has arguedfollowing abarthat at least one Qurnic verse affirms this latter view. In verse 4:24, the Qurn permits sexual relations (or marriage) with those considered milk al-yamn, understood to refer to those with whom there is a contract or relationship of milk, i.e., a master-slave relationship; and in verse 24:33, it forbids slavemasters from forcing slavewomen into having sexual relations. Put together, these verses indicate that the master-slave relationship creates a status through which sexual relations may become valid but that those relations are licit only if agreed upon by both parties, which in turn indicates that the validation of sexual relations is more akin to contractual family law than to slave law placed under the rubric of property law. In other words, those called milk al-yamn are validly eligible for marriage (or sexual relations) just as are free, believing women; both require a further consensual agreementbringing the relationship under the law of 238
144

cases where the creditor thought otherwise and had intimate relations with the slavewoman he was holding on guaranty? When discussing criminal law, Ab anfa like other juristsheld that such relations incurred add liability because there had been no default, no transfer of ownership, and thus no legal basis for the act. But when discussing commercial law, he considered this same matter a case of add-averting doubt (shubha). For Ab anfa, the loan agreement created the semblance of a contract, which conferred on the creditor at least partial ownership of the slavewoman; and this provided him a reasonable basis for believing that he had the authority, entitlement, or ownership interest (milk) to initiate licit sexual relations with the slavewoman.145 As a result, Ab anfa held that judges should avoid the add punishment in such cases.146
contract according to a rubric of family rather than property law; neither category of woman can be forced to have sex without her consentviolation of which the sources hold as tantamount to the crime of zin and/or rape. See abar, Tafsr, 8:151-65 (discussing the active and passive readings of in as applied to muant or muint in these and other verses, including verses 4:3, 4:23, 5:5, 5:25, and 24:4); Motzki, Koranische Sexualethik, 194-95, 199-200 (same). Cf. Qurn, 4:3 ( fa-nki m ba lakum mina l-nisi mathn wa-thultha wa-ruba fa-in khiftum all tadil fa-widatan aw m malakat aymnukum ), 4:23-24 (urrimat alaykum muantu (muintu?) mina l-nisi ill m malakat aymnukum ), 24:33 (wal-yastafifi lladhna l yajidna nikan att yaghniya llhu min falihi wa-lladhna yabtaghna l-kitba mimm malakat aymnukum fa-ktibhum in alimtum fhim khayran wa-thum min mli llhi lladh tkum wa-l tukrih fataytikum al l-bighi in aradna taaunan ). For an excellent analysis of these and other issues in anaf law with a slightly different formulation explained in terms of contracts of commercial and social exchange, see Baber Johansen, The Valorization of the Human Body in Muslim Sunn Law, in Baber Johansen, Amy Singer, and Devin Stewart, eds., Law and Society in Islam (Princeton: Markus Wiener Publications, 1996): 71-112, 75-76 (calling the master-slave relationship per se validating), 77-78 (calling the male authority that accrues to a man through marriage (milk al-nik [right of access or enjoyment]) a type of social property), 79-81 (describing as jurisprudentially problematic the juristic regard for slaves as property subject to commercial transactions who nevertheless remain human beings regulated by social conventions), 85 (describing the development of Muslim fiqh over time as creating a predominance of the commercial over social exchange in slave law, particularly as applicable to slavewomen).
145

This rule of Ab anfa is explained in Ibn al-Al al-Anr (d. 786/1384-5), al-Fatw al-Ttrkhniyya, ed. Sajjd usayn (Karachi: Idrat al-Qurn wal-Ulm al-Islmiyya, 1990-), 5:108-116 (discussing the differences in the rules f kitb al-rahn and f kitb al-udd); Ibn bidn, al-Radd al-mutr, 12:61-84; Ibn Nujaym, Ashbh; see also Q Khan, Fatw, 3:480-89.

On the same logic, marriages that non-anaf schools of law validate give rise to instances of addaverting shubha, not because anafs recognize the validity of those rules or view the permissions as valid textual bases that give rise to a reasonable mistake-of-law, but because those types of marriages can nevertheless yield the semblance of a marriage contract. Specifically enumerated are marriages without witnesses (according to the Mlik rule), temporary marriage (according to an early Meccan opinion 239

146

These examples illustrate how, for Ab anfa, a single case can have two aspectsone criminal and the other commercialand that the two can be governed by two sets of laws with differing legal outcomes. On the one hand, Islamic criminal law generally defines zin as sexual relations between two people in the absence of a valid legal relationship, as between siblings or a slavemaster with a slavewoman without full ownership. On the other, Islamic commercial law validates such relations whenever there is a contract or, according to Ab anfa, the semblance of one. In such cases then, Ab anfa privileged contract law, voiding add liability and espousing a rule of udd avoidance on the basis of the shubha created by the semblance. The effect is a general rule of udd avoidance in criminal cases involving contracts, however knowingly defective.147 C. Early anaf Shubha As we saw in the last two chapters, the udd maxim was a well known criminal law principle in Iraq during Ab anfas time, before it, and afterward. Ibrhm alNakha was one of the spokesmen for the maxim and Ab Ysuf championed the doctrine in his manual penned for the caliph, Kitb al-Kharj, and in his judicial decisions. And we see here that Ab anfa counseled udd avoidance when it came to uncertainties regarding continuing criminal effects and to doubts created by contract formalities in a wide realm of commercial law to which he accorded primacy.

attributed to Ibn Abbs, which, incidentally, is shared by the Sha), or sexual relations with a slavewoman with the permission of her master (again, according to an early Meccan rule). See Ibn Nujaym, Ashbh, 1:128.
147

Ab anfas position on contractual shubha carries over to contracts for sex that other jurists consider prostitution: for him, the agreement creates a semblance of a contract that removes add liability, while all othersincluding his two Companions, many mainstream anafs, and other legal schoolsreject this rule. See, e.g., Qudr, Tajrd, 11:5908-09; Ibn Nujaym, al-Bar al-riq, 5:16. 240

To be sure, Ab anfas rulings did not always set the norm for his school.148 His two most prominent student-companions, Ab Ysuf and Shaybn, often objected to his rulings and took opposite stances on questions of udd imposition versus avoidance, as noted on the margins above. They objected strenuously, for instance, to the last scenario of contractual shubha.149 And down the line, most other anafs were of the opinion that udd punishments were not to be avoided in such cases because there was neither a contract nor a semblance of one.150 For them, a contract between siblings was not just defective and voidable (fsid); it was per se void (bil), because the two parties were ineligible to enter into the contract in the first place. In other words,
148 Only a minority of later anafs followed Ab anfas views of contractual shubha (shubhat al-aqd), often implicitly. Qudr, for example, does not discuss the categories but indicates that he would adopt that category if he did, as he agrees with Ab anfas positions in illustrative cases involving contractual shubha (e.g., regarding add-aversion in cases of prostitution and marrying a maram). Qudr, Tajrd, 11:5901-07; Marghnn, Hidya, ed. Muammad Muammad Tmir and fi shr fi (Cairo: Dr alSalm, 2000) (drawing from Qudrs Mukhtaar and Shaybns al-Jmi al-aghr); Abd Allh b. Amad alNasaf, Kanz al-daqiq, ed. Ab l-usayn Abd al-Majd al-Murdzah al-Khsh (Zhidn, Iran: Muassasat Usma, 2003). Other jurists seem to accept contractual shubha as mistake of law (shubhat al-maall), which is regarded as a type of add-averting shubha, all of which are therefore sometimes called shubha ukmiyya. E.g., Zayla (d. 743/1343), Tabyn, 3:566. Still others accepted contractual shubha outright, identifying it as marital ambiguity (shubhat al-nik or shubhat al-milk); these jurists adopted Ab anfas rule that add liability is canceled in cases of incestuous marriages. Ksn, Badi al-ani, 9:4150 (defining the types of shubha according to categories of contract as: aqqat al-milk versus shubhat al-milk, aqq al-milk or aqqat al-nik versus shubhat al-nik, and shubhat al-ishtibh f mawi al-ishtibh f l-milk wal-nik).
149

Ibn Nujaym, Ashbh, 1:128 (noting their disagreement with Ab anfas rule of add aversion by shubhat al-aqd where there is knowledge of illegality of marrying but no mistake as to identity). These two students, also called the two Companions, played a considerable role in the development and spread of anaf law, to the point that anaf law seems to adhere more to their doctrines than to those of their teacher. A plausible explanation is that they changed their opinions in response to traditionist opposition by acknowledging the authoritativeness of traditions as a source of law and then bringing their opinions into conformity with traditions as a way of maintaining their prestige in a growing traditionist milieu. See Tsafrir, Early Spread of anafism, 28. For more information on the role played by these two companions, together with a third, Zufar b. al-Hudhayl, see ibid., 20-36.

Accordingly, jurists like Ibn al-Humm insisted that there are only two types of shubha: mistake-oflaw and mistake-of-fact. Ibn al-Humm (d. 861/1457), Fat al-qadr, 5:249-52 (identifying the two categories as shubha f l-fil [or] shubhat al-ishtibh and shubha f l-maall [or] shubha ukmiyya), 5:253 (noting that Ab anfa added shubhat al-aqd, but rejecting it). Likewise, Ibn Nujaym pointedly rejects Ab anfas rule of averting the add by shubhat al-aqd from siblings who attempt to marry in favor of Ab Ysuf and Shaybns rule to the contrary. See, e.g., Ibn Nujaym, al-Bar al-riq, 5:5 (his work of fiqh, wherein he rejects shubhat al-aqd when discussing incestuous marriages and the like). 241

150

the prohibition against incest means that any agreement purporting to create a marriage contract between closely related relatives is not legally cognizable.151 To say otherwise would amount to playing with the law and Muslim scripture itself, according to one scholar.152 The Lawgiver, he says, specifically prohibited incest and the law otherwise details conditions for valid contracts; violations of these rules then absolutely warrant udd punishments for zin.153 The disagreement between anaf jurists highlights a significant aspect of Ab anfas jurisprudence of criminal law when placed in competition with commercial law: he either was more oriented to vindicating private commercial agreements or placed contracts on par with foundational texts. The important take-away is the way in which this orientation toward privileging commercial law instruments affected criminal law and contributed to an expanded scope of udd avoidance. This divergence of Ab anfas disciples was a regular occurrence, to the point that one can think of almost two separate currents of anafismfollowers of Ab anfa amongst the anafs as opposed to followers of Ab Ysuf and Shaybn.154 The fluid nature of the substantive doctrines associated with anafism in particular begs the question whether the assembly of divergent views deserves the label anaf.
151 See Ibn Nujaym, Bar al-riq, 5:16 (discussing contracts of incestuous marriages, incestuous masterslave relations, and prostitution as a temporary contract for sex). Even where the parties are unaware of the relationship, upon discovery, their marriage is annulled and they are to be separated.
152 153

Ibn Ab al-Izz, Tanbh, 4:148. Ibid.

154 Christian Lange introduces this terminology to reflect the radically divergent opinions of Ab anfa and his Two Companions on male sodomy, before discarding it in favor of the less cumbersome terms pro-add and anti-add factions. Lange, Justice, Punishment, 201. He also observes that the positions of each side as represented in the 2nd/8th and 3rd/9th century sources are spotty at best although several later jurists attribute certain opinions to each side. One should keep in mind that one cannot know for sure whether these are indeed their original teachings. It appears more likely that Ab anfa as well as Ab Ysuf and Shaybn came to function as name tags for currents of thought within the anaf school. Ibid., 200ff.

242

Nurit Tsafrir has argued convincingly that it does on the basis of both external and internal evidence. Externally, the group was viewed as a distinct and cohesive group, even if we cannot now identify its full contours. Internally, the students shared a sense of affiliation and transmitted doctrineseven when they diverged from those of their teacheras anaf.155 A third element involves the one she did not address in her bookthe doctrines and methodological approaches of the anafs contained in the legal sources. This is the focus here, with an emphasis on criminal law. We can add that anafs were also characterized by a certain approach toward text and textualism that brought them more in common with one another than with their Shfi and Mlik counterparts. Despite their divergences on substantive rules of udd imposition and avoidance, Ab anfa and his students shared an approach that regarded the text as a starting point that created certain presumptions (al, pl. ul) of add liability but that were only fully determined after an evaluation of competing values, source authentication, and presumptions warranting udd avoidance. A common stream within both currents was the acceptance of the udd maxim. * * *

Subsequent anafs followed one or the other of the early anaf currents typically breaking down their regard for and application of the udd maxim according to the opinions attributed to Ab anfa on the one hand and to his two students on the other. These later anafs invoked the maxim early on in their fiqh and jurisprudential works. Recall that the first surviving, known attribution of the maxim to the Prophet
155 Tsafrir, Early Spread of anafism, xi. In recognition of the divergent elements and the lack of full information about the doctrines of the time, she opts to call those associated with 2nd/8th anafism the anaf circle rather than anaf school, which was not sharpened until the 3rd/9th century as marked by their participation in implementing the Inquisition about the Createdness of the Qurn (mina) and fully in the 4th/10th century by the elaboration of legal theory (ul al-fiqh). Ibid., xii-xiii. 243

comes from the hand of the anaf jurist Ja (d. 370/981).156 At the same time, anafs were, for a couple of centuries, more intent on ascertaining whether there was add liability on a case-by-case basis than on spelling out the scope of udd avoidance according to any broad theory based on the udd maxim. However, by the time of the illustrious anaf jurist Qudr (d. 428/1037), there is a thick juristic discourse about the contours of shubha and scope of the udd maxim itself. Most jurists at that point accepted the udd maxim as Prophetic and argued with other jurists (as well as with each other) about just when the maxim applies, especially given the two very different currents of thought on add liability on particular points of law (such as the validity of contractual shubha). It is at this point that Qudr, Sarakhs (d. 483/1090), and subsequent anaf jurists began to outline the theory of shubha through delineating the model cases where it arises and gives rise to udd avoidance. These developments are taken up in the next chapter.157
IV. Early Mliks

Mlik too focused on delineating areas where the add liability applies and where it is canceled, except that he used the udd maxim more liberally. This is striking as he was in the ijz, and the maxim now seems to us better known for its Iraqi usageso much so that Fierro posits that Iraqi anafs brought it into circulation and remained its greatest champions. That hypothesis was no doubt based on the literary sources that anecdotally recorded anaf encounters with the maxim; but as the legal literature shows, the maxim was prominent elsewhere. The Mlik legal literature suggests that it was perhaps most attested in Medinan jurisprudence. For
156 Ja (d. 370/981), Akm, 3:330.
157

See Chapter 4. 244

Mlik, determinations of add liability turned in significant part on what happens in the courtroom. Thus, he invoked the maxim often to describe how a judge should handle questionably criminal cases. In fact, he directed judges to actually find shubha at certain stages. Before that stage though, he too outlines areas of udd imposition based on his understanding of Prophetic Sunna reflected in Medinan practice (amal).158 A. udd Imposition Mlik defined criminal elements with respect to a mix of subjective and objective indicia. On issues of mens rea, he fell somewhere in between Shfis tendency to accept claims about a defendants subjective state of mind (claims of ignorance, mistake, lack of criminal intention to commit defamation) as valid justifications for avoiding udd sanctions and Ab anfas tendency not to. For Mlik, subjective facts like ignorance or mistake could be valid excuses, but he typically required defendants to prove it. 1. Mens Rea: Quasi-Objective Indicia and Shifting Burdens In his approach to mens rea, Mlik aligned with the other schools in intentionality requirements and the like, except that he typically looked to objective indications of criminal intent or culpability. Often, he took the external clues pointing to those factors as circumstantial evidence of guilt; he then placed the burden on the
158 For overviews of Mlik law and the doctrine of relying on the practice of the people of Medina (amal ahl al-Madna) as determinants of Sunna, particularly in the face of conflicting adths, see Yasin Dutton, Amal v. adth in Islamic Law: The Case of Sadl Al-Yadayn (Holding Ones Hands by Ones Sides) When Doing the Prayer, Islamic Law and Society 3, 1 (1996): 13-40; idem, Original Islam: Malik and the Madhhab of Madina (London; New York: Routledge, 2007). The most comprehensive survey of this concept in Mlik jurisprudence is that of Umar Faruq Abd-Allah, Mliks Concept of Amal in the Light of Mlik Legal Theory (unpublished PhD dissertation, University of Chicago, 1978); for an update to his study covering courtroom proceedings in addition to theoretical matters, see Mohammad Fadel, Adjudication in the Mlik Madhhab: A Study of Legal Process in Medieval Islamic Law (unpublished PhD dissertation, University of Chicago, 1995). 245

accused to demonstrate their innocence. It is as if the external factors create a presumption of guilt. For example, in defamation cases, Mlik held that implicitly defamatory statements (tar) constituted the crime of defamation and incurred full add liability.159 (Recall that this is in contrast to the position of Shfi, who made intention to defame an element of the crime.) If one man said to another man, for instance, I am not the promiscuous one, he would be liable for the add punishment.160 This is because it is clear from normal language conventions that the speaker was accusing the addressee of being promiscuous by implication.161 This conclusion is backed up for Mlik by a precedent involving Umar b. al-Khab. During his time, one man said to another man, By God, my mother and father were not promiscuous. When the case was brought to Umar to adjudicate, he asked the man about his statement and received the reply that the man simply had been praising his parents. Umar responded that there are better ways to praise them and flogged him.162 A similar regard for circumstantial or conventional evidence applied in other areas. Again, take defamation as an example. If one man called another mukhannath, which typically means effeminate, Mlik held that use of this phrase created a presumption of add liability because the conventional meaning of the word is
159 Sann, Mudawwana, 7:2429 (tar) (reporting Mliks saying that f l-tar al-add kmilan).
160 161

Ibid. (m an bi-zn).

Ibid. Some of these rules reflected and went implicitly to preserving status hierarchies based on genealogy. Thus, Mlik held that if a person looked at an apparently Arab man and said, O Abyssinian! (i.e., Black man), he would be add-liable if the addressee was Arab because the phrase used amounted to placing him outside of his own race or nation (jins); denying his affinity with the mans proper group would amount to a denial of lineage. If the addressee were a client of another tribe from non-Arab origins (mawl), and called a Berber, Persian, Roman, or Nabateanor some other race (jins, literally: genus)this would incur no add liability. Ibid., 7:2435.
162

Mlik, Muwaa, 2:392. 246

defamatory in most social contexts. The man could, however, absolve himself of add liability by swearing an oath that he did not mean the statement in a derogatory way, or that he merely meant to pay the other man a spiritual compliment, where mukhannath means bent or impotent before God (mukhannath billh)which is another conventional, but less frequent meaning.163 For Mlik, removing add liability by oaths was contingent on the oath being somewhat plausible. If the target of the statement was in fact effeminate or soft-spoken (tanth, ln, istirkh), the oath of the person who called him effeminate would be accepted (i.e., that he did not mean to make a derogatory or factually untrue statement), and this would remove add liability. But if the addressee had none of those characteristics, add liability would not be removed from the one who made the statement despite his claims that he did not intend to defame, because objectively speaking his claims would be implausible based on the external state of affairs.164 Thus, implicitly defamatory statements created a strong rebuttable presumption of add liability, the removal of which hinged on plausible claims of non-criminal intent. Some cases for Mlik were matters of strict liability according to objective determinations; they required no proof and no excuse was valid. For example, as most other jurists held (all except Ab anfa and those following him on the issue of sulnic coercion), rape always warranted add liability against the perpetrator and the victim was always absolved of add liability.165 But for Mlik, the important question involved
163 For this sense, see Edward W. Lane, Arabic-English Lexicon (Cambridge: Islamic Texts Society, 1984) [Orig. publication: London; Edinburgh: Williams and Norgate, 1863], 1:814-15 (s. rad. kh-n-th).
164

Sann, Mudawwana, 7:2440.

165 Ibid., 7:2444 (equating sex with a sleeping or insane woman to rape, and attributing this opinion to Al b. Ab lib, Ibn Masd, Sulaymn b. Yasr, Raba, and A).

247

proving the rape, and this turned out to sometimes create a tough standard for the victim to meet. He did not allow mere claims of rape, particularly when they went against other circumstantial evidence suggesting that zinperhaps of the non-coerced kindhad occurred. If a woman known to be unmarried was found pregnant and claimed to have been married to the father of the unborn child or to have been raped, the judge was not to accept her claim on her word alone. Instead, she was required to produce some evidence of the marriage or that she was raped, such as indications that she had been crying or had called for help while being raped.166 Here, Mlik was perhaps drawing on the practice reported in Medina of the (Yemeni or Medinese) woman who came to Umar crying, whereby Umar believed that she had been raped and ruled that there was no add liability.167 Through it, he showed the extent to which he was shifting the burden of proofwhen compared to other juriststo the victim in some instances. Likewise, Mlik placed on the accused the burden of proof that any mistake as to an alleged sex crime was an honest one, echoing the situations above, where the man was presumed guilty unless he could prove otherwise. For support, Mlik cited the case over which Umar presided in which a man took his wifes slavewoman with him on a trip and had sex with her. Jealous, the wife brought the case to Umarsignaling that she had not given her permission for sex and that the relations were not licit, much less welcome. But when Umar asked the husband about it, he claimed that his wife had given the slavewoman to him. Umar ruled that unless the man could produce proof of
166 Mlik, Muwaa, 2:390. See Chapter 2, Appendix, Case no. 14 and citations therein. But see Chapter 2, Appendix, Case no. 15 (Case of Rape, wherein the Prophet purportedly averted the add punishment from the victim and perpetrator, without requiring strong evidence). 248
167

his claim, he would receive the add for adultery. So the wife confessed to having gifted the slavewoman to him.168 In sum, Mliks approach to the question of when add punishments were due was based on his understanding of the Sunna as exemplified by Medinan community practice, and for him, that entailed proof that all the elements of the add crimes were present based on the objective indications of fact. The presumptions created by circumstantial evidencepregnancy, implicitly offensive words, etc.could be rebutted, but only with requisite plausible proof. For him, add liability became due when all signs pointed to a crime as defined in his understanding of the Sunna. In this area, he did not discuss shubha or contemplate much role for the udd maxim. 2. Criminal Elements and Convention In defining other criminal elements, Mlik was known to resolve the issue of conflicting definitions of Sunna based on divergent traditions by following the practice (amal) of the people of Medina, as noted above. For him, thisand not as for Shfi just issues of adth authenticitywas the best arbiter of confusion concerning the content of the Sunna.169 And it was on this basis that he proceeded in his discussion of when udd punishments were due. Based on his understanding of the Sunna, he defined zin as sex between a man and a woman. Therefore, anal sex was zin, but bestiality was

168 Ibid., 2:293. This story is a version in the Sunn context of a case related as one of Als judgments above. See Chapter 3, pp. 52-53 and Appendix, Case no. 23. Like Shfi, Mliks aim was to bring order to the growing chaos brought about by disputed views of the Sunna on the basis of conflicting adths and some of the Irq juristic opinions thatin his view could not claim to be based in Sunna, based as they were in ray without the benefit of Medinan practice. For further discussion, see Shamsy, From Tradition to Law, 10. For a discussion of Mliks limitations on variant opinions that emerge from anaf-style ray, see ibid., 24-28. For a discussion of the differences between Shfi and Mlik on substantive areas of law (mostly non-criminal), revealing their interpretive differences vis--vis adth, see Shfi, Umm, 8:513-779 (kitb ikhtilf Mlik wal-Shfi). 249
169

not, such that the former incurred add liability while the latter did not.170 Like Shfi, he defined the prohibition against drinking to include any beverage that was intoxicating. He accepted the tradition that any intoxicant is wine (khamr), and held that Medinan practice affirmed that rule.171 Criminal liability for drinking, he held, is proved when the accused confesses to drinking an intoxicant or witnesses testify that they have seen a defendant drinking or smelled intoxication on his breath (an allowance of circumstantial evidence typical in Mlik law).172 Mliks discussion of the elements was not very detailed and he made no mention of shubha, as the lines of definition for him were clear and the evidentiary standards relatively straightforward: Once it was established which crimes fell under udd laws based on the Sunna as known in Medina, objective proofs of criminality were necessary to trigger actual add liability. And once those indicants were proved in a courtroom, he heldalong with the other juriststhat no intervention was allowed, as exemplified in afwns Case.173 With his focus on convention-backed textual clarity from the sources and interpretations of Sunna, it not surprising then that Mliks discussion of udd avoidance and the scope of the udd maxim would arise in matters of procedure and evidence, as described below.

170 Sann, Mudawwana, 7:2420 (on bestiality). Ibid., 7:2459-60 (according to Ibn al-Qsim). This of course differs radically from the anaf position discussed above.
172 173 171

Sann, Mudawwana, 7:2459. Mlik, Muwaa, 2:397. 250

B. udd Avoidance 1. Criminal Elements and Completion Mlik looked to some of the same instances as did Shfi and early anafs when contemplating situations of udd avoidance. Most involve cases of theft or zin where the ownership interest or right to enjoyment was unclear. Some are by now familiar. In potential cases of theft or zin, there will be no add liability where a man takes his son or daughters belongings or has sex with a slavewoman belonging to one of his children.174 Similarly, there will be no add liability if a man has sex with a slavewoman that he only partially owns in that he shares joint ownership (and thus claims the right to enjoyment) with a business partner.175 The same goes for spouses who steal from each other in a house they share, or servants who steal from their masters where they have free access to the house.176 In all of these cases, Mlik identified some plausible doubt (shubha) as to whether the accused had a legitimate ownership interest or basis for his or her actions. He concluded that there is no add liability in the above scenarios because the money had not been stolen from a secure location, nor had property been taken from, or sex enjoyed with, someone with whom there was no plausible ownership interestalbeit erroneous. In each situation, there was some

174 Ibid., 2:293.

175

Ibid. Cf. Utb, in Ibn Rushd al-Jadd, Bayn, 16:165. Ibn Rushd says that this is considered a addaverting shubha, such that the act is no longer considered a crime (yuqaddar bi-hdhihi l-shubha wa-duria anh al-add bih fa-kharajat min an takn jinya). He says that this position (al) was a matter of dispute as to what Ibn al-Qsims position was: is the joint ownership (sharika) the shubha for one of the partners in his portion of ownership, as has been explained in the sam of Sann. Ibid. Mlik, Muwaa, 2:402-04 (calling it deception or fraud (khalasa or khiyna) rather than theft). 251

176

measure of doubt, and it is in this vein that Mlik invoked the udd maxim in such cases.177 In other scenarios, Mlik spelled out that, in the same way that objective indicia of a completed crime create add liability, merely subjective indicia voided it. Accordingly, Mlik was explicit that the add does not apply when the elements of the add crime have not been completed according to objective criteria. Thus, mere attemptwhere a thief has gathered materials with a clear intention to take them but has not yet removed them from a secure locationwould not render the would-be thief eligible for the add punishment for theft.178 Likewise, neither would there be add liability for a man who has an alcoholic drink in his hands but has not actually sipped it, or a man sitting with a woman and desiring her but not actually pursuing sex with her.179 These are bad intents, not bad acts, and the law only punishes the latter.180 For Mlik, anything short of a completed crime in which there was no doubt concerning ownership interest and the like according to the Sunnaas informed by the practice of the people of Medinawas cause for udd avoidance. This doctrine extended in short order as Mlik law spread beyond Medina and Egypt to Andalusia.

177 Ibid., 2:393 (saying that the add is averted by [the permission given]: duria anh al-add bi-dhlik in the case of a man who has sex with another mans slavewoman with his permission, though this is illegal; and that the add is averted from : yudra anh al-add a man who has sex with his son or daughters slavewoman, even though that too is illegal).
178 179 180

Ibid., 2:406. Ibid.

Cf. Abou El Fadl, Rebellion and Violence, 241-44 (noting that, as the jurists developed the term, baghy (rebellion) did not connote criminal liability itself, and that rebels were not criminally liable simply for attempts or for acts against the state if they enjoyed a valid interpretation (tawl) legitimating their acts; in other words they had to have an intent to rebel without such valid interpretation). 252

2. Finding Shubha: The Judicial Role Within just a couple of generations, Mlik law in Egypt and Andalusia had taken advanced steps toward placing the udd maxim at the center of criminal law policy. There, where Mlik law flourished,181 Abd al-Ramn b. al-Qsim (d. 191/806) provided the basis for the schools doctrines as contained in a work called the Mudawwana.182 In explaining Mliks opinions to Asad b. al-Furt (d. 213/828) and then Sann,183 who
181 Mlikism began in Medina and spread to Egypt then North African and Andalusia; there were also Mliks in Baghdad during the early period. Sources for the schools doctrine, however, are in short supply outside of those circulating in Ifrqiya and Andalusia and to a lesser extent, Egypt. For an analysis of Mlik law in Egypt and the extant parts of the oldest systematic handbook of the Mlik school penned by the Egyptian jurist Ibn Abd al-akam, see Jonathan Brockopp, Early Mlik Law: Ibn Abd Alakam and His Major Compendium of Jurisprudence (Leiden; Boston: Brill, 2000), esp. 66 (quoting Joseph Schacht, On Some Manuscripts in the Libraries of Kairouan and Tunis, Arabica 14 (1967), 240). Schacht refers to manuscripts listed in Carl Brockelmann, Geschichte der arabischen Litteratur (Leiden; New York: Brill, 1996-). For a fuller list, see Fuat Sezgin, Geschichte des arabischen Schrifttums (Leiden: Brill, 19672007), vol. 1.
182 Ibn al-Qsim was an Egyptian jurist and student of Mlik from time spent in Medina; his reports of his teachers jurisprudence were recorded in a work called the Mudawwana, which spread widely across North Africa and Spain. That work comprises questions that Sann asked of Ibn al-Qsim, who answered them according to what he had heard from his teacher, Mlik, or according to his own ijtihd if he knew of no on-point doctrine from Mlik. Ibn al-Qsim was also the main informant for the Utbiyya. These, together with the Mawwziyya by Muammad b. al-Mawwz al-Iskandar (d. 269/882) and the Kitb al-Wia of Ibn abb (d. 238/362) form the canonical works for Andalusian Mlik law (ummaht). Of these books, only two fully survivethe Mudawwana, published as an independent work, and the Utbiyya, quoted in Ibn Rushd al-Jadds al-Bayn wal-tal and preserved in part in manuscript form. For the quotations, see Ibn Rushd al-Jadd, Bayn. For the manuscripts, see Alfonso Carmona, The Introduction of Mliks Teachings in al-Andalus, in The Islamic School of Law: Evolution, Devolution, and Progress, ed. Peri Bearman, Rudolph Peters, Frank Vogel (Cambridge, MA: Islamic Legal Studies Program, Harvard University, 2005): 41-56, 50 note 109 (citing bibliographies for the mss. in Qayrawn). The other two are only available through small quotes in extant books. For further discussion, see Jd, Mabith, 63-66; Ana Fernndez Felix, Cuestiones Legales del Islam Temprano: La Utbiyya y el Proceso de Formacin de la Sociedad Islmica Andalus (Madrid: Consejo Superior de Investigaciones Cientficas, 2003) (cited [in the unpublished PhD dissertation version] in Carmona, Mliks Teachings in al-Andalus, 110: noting that Ibn al-Qsim was the main informant for Muammad b. Amad b. Abd al-Azz al-Utb (d. 255/869) and that his Utbiyyaalso called al-Mustakhraja min al-asmia mimm laysa f l-Mudawwanabecame one of the relied-upon books of the school).

Note that Miklos Muranyi disputes the idea that the Mudawwana was initiated by Asad. See his Die Rechtsbcher des Qairawners Sann b. Sad: Entstehungsgeschichte und Werkberlieferung (Stuttgart: Deutsche Morgenlndische Gesellschaft; Kommissionsverlag, F. Steiner, 1999), x, 18 (noting that the oldest surviving dated fragments of the Mudawwana and the Mukhtalia [= al-Asadiyya], both believed to be recorded by Asad, come from the second half of the 3rd/9th century [256/869 and 292/904]), 37-38 (providing examples of differences between the two works attributed to Asad that suggest different authors). This matter may deserve further attention in another context; for our purposes, there is no dispute that the work comes from and was considered the most important compendium of Mlik law in Andalusia by the first few decades of the 3rd/9th century. For a more comprehensive review of Mlik 253

183

recorded the Mudawwana, Ibn al-Qsim drew on Mliks opinions where possible but provided his own interpretative reasoning (ijtihd) where he did not find anything from Mlik relevant to an issue at hand.184 According to Ibn al-Qsim, Mlik was the first jurist to explicitly call upon the judge to investigate criminal cases with an eye to udd avoidance. The judge, Ibn al-Qsim explained, was to inquire about the time, method, and manner of commission crimes to ensure that before he imposed add liability, the technical legal definition of the crime with all its elements were met. This, he said, was in keeping with Mliks criminal law policy, which in turn appealed to the example of the Prophet. In the Case of Miz, the Prophet had asked Miz whether he had perhaps merely kissed or touched a woman but confessed to zin because he mistakenly thought that those acts met the technical meaning of that crime.185 Likewise, Mlik asked defendants about the precise nature of their crimes. The purpose in pursuing this line of questioning was to discover whether there was any add-averting deficiency in the criminality of the act or culpability of the defendant. In other words, judges were to investigate each case for the presence of doubt of the type that would trigger the udd maxim (i.e., m yudra bih al-add anh)?186

luminaries and doctrines from the 2nd/8th through 5th/11th centuries based on manuscript evidence from the Qayrawn Library, see idem, Beitrge zur Geschichte der adt und Rechtsgelehrsamkeit der Mlikiyya in Nordafrika bis zum 5. JH. D.H.: bio-bibliographische Notizen aus der Moscheebibliothek von Qairawn (Wiesbaden: Harrassowitz, 1997).
184

The Mudawwana was known as the basis for binding legal judgments and advisory opinions (qa and ift), preferred over the other canonical Mlik works. It generally received much praise from the major scholars, and was called the second source [of law] (al-al al-thn) after the Muwaa. Jd, al-Madhhab al-Mlik, 63-66. See Chapter 2, Appendix, Case no. 13.

185 186

Sann, Mudawwana, 7:2463 (wa-innam l-qa add min al-udd fa-yanbagh lil-Imm [an] yakshif fh al-shuhd kam yakshifuhum f l-zin). Thus, it may be that the value does not rise to the level warranting the add sanction of hand-amputation, though the act itself otherwise counts as a add crime. 254

Following his teacher, Ibn al-Qsim insisted that judges should evaluate questions of add liability with an eye toward avoiding udd sanctions. Effective means of doing so included being attentive to issues of evidence and adopting heightened mens rea requirements. For example, he held that judges should be open to witness testimony beyond the initial testimony presented, given the ever-present specter of mistaken or false testimony (shahdat al-zr).187 If two witnesses testify against a man accused of theft by a third accuser that he did in fact steal, but two other witnesses then testify that someone else was the culprit, the judge should avoid the add punishment.188 In a similar vein, if a thief confesses to stealing but adds that he only has a single dirham left of the stolen money, he may be punished (yuqab), but the judge should avoid the specific add sanction because there is no solid evidence that the man in fact stole the three dirhams or the requisite equivalent to complete the elements for theft.189 As well, if a thief steals an item worth three dirhams of debased money, the judge should avoid the add sanction because there is doubt as to whether he has satisfied the requirement for theft of goods worth three dirhams, as measured during the Prophets time. In such cases generally, Ibn al-Qsim explained, I prefer to
187 This was a significant issue in Muslim evidentiary contexts from the earliest periods. For an analysis, see Abd al-Majd, Ittijht, 549-50. The specter of false testimony was also significant elsewhere; it was the major issue plaguing medieval Christian judicial contexts where judges and jurors were concerned with their standing before God and their own salvation; the problem explained much of the shifting procedures of the criminal trial. See Whitman, Reasonable Doubt, 114-16, and passim.
188

Sann, Mudawwana, 7:2479 (noting that if the first two witnesses were upright and spoke to the best of their knowledge, their mistake was to be overlooked, that they were not to be disciplined with punitive measures for the mistake, and that their testimony was to be thereafter accepted (wa-uql wajzat shahdtuhum); but that if they were not known to be upright, they could receive a discretionary punishment, that they could be held liable for paying diya for the cut limb if they retracted their testimony after the imposition of the add sanction, and that their testimony was to be rejected thereafter). To be sure, this hypothetical position would ordinarily be difficult to justify or put to practice as the testimony of the two witnesses only conflicts with that of the former ones; the conflict does not itself prove that the first two witnesses had committed perjury or that someone else was in fact the culprit, which would require firmer evidence. Utb, Utbiyya, in Ibn al-Rushd al-Jadd, Bayn, 16:220. 255

189

avoid the add sanction because of the presence of doubt (aabb ilayya an yudra al-add bil-shubha).190 As for the heightened mens rea requirement, it may be illustrated by the following scenario. Mlik subscribed to the majority view that a man incurs add liability for purposefully marrying a legally barred partner (whether permanently barred, like a closely related relative, or temporarily so, like a woman during her divorce waiting period). But Ibn al-Qsim added that for add liability to attach, offenders would have had to have both entered such marriages purposefully and have known that they were prohibited.191 This meant that there were some cases wherein even purposefully marrying prohibited women would not incur add punishments. Even if a man married a woman during her divorce waiting period, admitted to having known of the illegality of marrying during that time, but claimed that he did not know that he would receive the add penalty for doing so, he would not receive a add punishment.192 Thus, for Ibn al-Qsim, Mliks knowledge requirement entails awareness of both the illegality and the specific criminal punishment associated with the act. When discussing Mliks ruling under the rubric of theft, for situations where a father takes from his son, Ibn al-Qsim called the situation one of shubha, and held that
190 Ibn al-Rushd al-Jadd, Bayn, 16:210 (reporting that Ibn al-Mawwz held an opposite view).
191

Sann, Mudawwana, 7:2411 (noting that marriage to classes of per se prohibited partners, if purposeful and with knowledge of the prohibition (midan rifan bil-tarm) would incur add liability, including a fifth wife, a thrice-divorced woman, a foster or actual sister, and a woman otherwise barred from marriage (maram)) .

Ibid., 7:2419 (commenting that he does not remember Mliks opinion at the moment, but thinks that he would have averted the add sanction (yudra al-add) because this is unlike the case of marrying a fifth woman and is therefore similar to the precedent established by Umar who avoided the add punishment and instead required the couple to separate and ruled that they could never become licit to each other thereafter). 256

192

the udd maxim applies (wa-qad qla dra l-udd bil-shubaht).193 Likewise, Ibn alQsim expanded on Mliks examples of canceling add liability for spouses or servants who share a house. For Ibn al-Qsim, if a man welcomes a guest inside his house, he has essentially created a situation wherein he offers access to his belongings contained in the house. If the guest then takes or uses property in the house, even if the owner has locked it away and the guest has to break the lock to steal it, the guest is not addeligible because of the shubha created by the living arrangements under a single roof, that is, because the man allowed him into his house.194 But Ibn al-Qsim is careful to delineate situations of ambiguous ownership and access like thesewhich create a add-averting shubhaand non-ambiguous oneswhich do not. Thus, while a wife who takes property from a house that she shares with her husband will not be add-eligible, if she takes her husbands property from a house other than the one they share, or if a servant takes money belonging to his master or mistress, add liability remains.195 Here, he is pointing to a view common among later jurists that add liability attaches when there is a lack of shubha concerning ownership or permissibility of use. Ibn al-Qsim also considered ignorance of the law to be a type of shubha that creates a add-averting excuse. If a master allows another man to have sex with his slavewoman, not knowing that it is in fact illegal to grant such permission, the add is to be avoided (duria anh al-add bil-shubha) because of the shubha created by his ignorance about the law.196 Likewise, if the second person receives this permission
193 Ibid., 7:2472.
194 195 196

Ibid., 7:2469. Ibid., 7:2472.

Ibid., 7:2417-18 (presumably this is where he does not know of the illegality, as he says in these same pages that the one who loans a slave woman is add-eligible). 257

despite its illegalityand has sex with the slavewoman, he will be excused, whether or not he knows of its legality.197 This, again, is similar to the shubha created by the ownership interest conferred by the permission.198 The proof that Mlik required for claims of ignorance remained throughout his disciples elaboration of the law. For the shubha to be add-averting, the mistake or claim of ignorance would have to be plausible and sometimes would require proof. If someone has sex with a slavewoman who belongs to someone else, for instance, he ordinarily would receive a add penalty. But where the offender claims to have either bought or married the slavewoman, add liability might be removed so long as the accused could prove his claim if the slavemaster denied it, for example, through swearing an oath. If he did so, that would be enough to establish the sale or marriage claim and to thus avert the add sanction (daraat anh al-add).199 From this discussion, we see Ibn al-Qsims approach toand one might say tendencies towardudd avoidance on the basis of an expanded definition of shubha. He maintains Mliks emphasis on evidentiary proof and his placement of the burden on the defender to prove shubha where all objective or circumstantial evidence points to a completed act.200 Yet he invoked the udd maxim liberally, and in the processby creating a

197 Ibid. (describing a situation where a man or woman permits another to have sex with his slavewoman: this incurs a add on the one to whom the slavewoman was made permissible but as to the accused, the add is avertedthough he has to pay the value of the slavewomanregardless whether he knew that the relations were not licit (yudra anh al-add jhilan kna lladh waaa aw liman). This is odd, but is perhaps explained by the rule requiring knowledge both that the act was illegal and that it would carry specific add liability. For further discussion, see below.
198

Interestingly, one might compare this to Ab anfas udd avoidance in commercial law contexts. It may signal that Mlik too privileged recognizing commercial law instruments above add imposition. Ibid., 7:2411-12.

199 200

Thus, the add punishment will not fall in cases where the testimony is implausible, as in Mliks rule on qadhf above, or contradicted by more reliable testimony. For example, if a victim of theft says the 258

heightened mens rea requirement, identifying mistake and ignorance as shubha, and specifying types of evidentiary shubhahe expanded the range of shubha and thus the scope of the udd maxim on evidentiary and procedural grounds. C. Early Mlik Shubha Other Mlik jurists followed suit in their writings, and the maxim appears to have figured prominently in their practices as well. In his legal writings, a prominent Mlik jurist of Cordoba, Muammad b. Amad al-Utb (d. 255/869), quoted Ibn alQsim extensively on issues of shubha, especially regarding instances where add liability is removed because of problems in the evidence. Prominent Mlik jurists of the same generation and a little before, such as Ashhab (d. 204/819), Ibn abb (d. 238/853), and Ibn al-Mawwz (d. 269/882), also devoted considerable attention to detailing issues of evidence.201 Their emphasis was on detailing what evidence sufficed to warrant add liability, particularly when there are conflicts as to time, manner, and place; for all, the add only applies with airtight evidence that the elements of the crime have been established; in cases of true conflicts, it does not. An example of a false conflict is where two witnesses testify that a man has drunk an intoxicant but disagree whether it was nabdh or khamr. Because the elements of the crime are satisfied either way under Mlik law, the conflict does not create the type of doubt that would remove add liability.202
item was not in fact stolen but two reliable witnesses testify that it was, Ibn al-Qsim reports that Mlik would impose the add. See ibid., 7:2465.
201

For examples, see Ibn Ab Zayd al-Qayrawn (d. 386/996), al-Nawdir wal-ziydt (Beirut: Dr al-Gharb al-Islm, 1999), 9:95-101 (quoting several works mostly no longer extant as independent works, including: Ibn al-Mawwz, K. Ibn al-Mawwz [al-Mawwziyya]; Ibn al-Qsim in Utb, Utbiyya (esp. kitb aldaw); Ibn abb, Kitb Ibn abb [= al-Wia]). Ibid. Of course not all of them agreed on when add liability was canceled. Not all were as bent on add avoidance as was Ibn al-Qsim either. Ashhab frequently disagreed with instances where Ibn al259

202

As for practice, two examples can demonstrate the point. Utb reported a case in which a man suffering from extreme hunger sold his wife to another man for funds. Ibn al-Qsim reportedly invoked the maxim to avoid the punishment.203 And we have already seen another episode involving the Cordoban jurist Ibn abb (d. 238/853), who invoked the maxim to save his brother Hrn from a death sentence for a blasphemy accusation.204 As Ibn al-Qsim and other Mlik jurists show, by the 3rd/9th century at least, the udd maxim was a regular part of Mlik jurisprudence and was pervasive amongst the highest echelons of society in the jurists attempts to continue the practice of the Companions and the people of Medina; by the 4th/10th century, Mliks also regarded the maxim as a sound prophetic adth. Subsequent Mliks expanded on this line, from Ibn Ab Zayd in that century and Ibn Abd al-Barr and Bj in the next, to the two Ibn Rushdsthe grandfather and the grandsonof the 6th/12th century and beyond.205 The
Qsim held that the add liability was removed, holding that it was due. For example, in the common example of alleged theft between relatives, Mliks and most jurists held that a father may not receive the add for stealing from his son, or other relatives from one another, in any area to which they all had access. Bj explains that theft constitutes anything for which there is no shubha as to whether the element of taking from a secure location was satisfied (m l shubhata lah fh min irz mithlih). Ibid. But jurists disagreed as to whether this add-removal rule applied to alleged theft on the part of a grandfather or other relatives. Where Ibn al-Qsim held that the add liability was removed, Ashhab held that it remained. Bj explains that Ashhabs opinion was based on a view of the crime from the perspective of rights to the property, not the shubha concerning the secure location. That is, legally, the grandfather-thief does not have an obligation to provide for his grandson, so has no claim of right to his property to offer the type of shubha that would avert the add. For the same reason, he held that the son would receive the add punishment for theft for taking his fathers goods: he also has no claim of right (shubha) to his fathers property (l shubhata lah f mal al-ab [li-annah] l nafaqa lah minh). See Ab l-Wald al-Bj, al-Muntaq shar Muwaa Mlik, ed. Muammad Abd al-Qdir Amad A (Beirut: Dr al-Kutub al-Ilmiyya, 1999), 9:232.
203 204 205

See Ibn Rushd al-Jadd, Bayn, 16:324-25. For discussion, see Chapter 2, Appendix, Case no. 4 and accompanying references.

See Ibn Rushd al-afd, Bidyat al-mujtahid, 2:324 (claiming universal consensus on the prophetic adth and practice as applied to doubts surrounding zin charges: idra l-udd bil-shubaht. See Qarf (d. 684/1285), Furq, 4:1307-09; idem, Dhakhra, 12:50-51, 60 (applying it as a adth and maxim to several cases); Ibn Farn (d. 799/1396-7), Tabirat al-ukkm, 2:88; Wanshars (d. 915/1508), Miyr, 2:431 (quoting an opinion of a judge attributing the maxim to the Prophet); ibid., 4:493-5 (same); Dasq (d. 260

udd maxim featured centrally as Mliks systematized the concept of shubha in udd laws and led up to the theorization of the udd maxim in the legal maxims literature. As before, these developments are covered in the next chapter.
V. Conclusion

As conceived by the jurists, the province of maxims was the province of the absence of text, of uncertainty, of doubt. (For if the text was clear and the evidence certain, the primacy they placed on subservience meant that udd imposition was mandatory.) As such, the udd maxim only arose when the text itself or the surrounding evidence gave no clear answer about criminality or culpability. Thus, jurists of this early period knew of the maxim, but in law manuals had to address concerns about what the text said in order to determine what the law was. Only after this first-tier interpretive process would the maxim weigh in, as filler for the gaps between the lines of text. They were all textualists; their dispute was over what constituted normative text and authoritative bases for udd imposition versus avoidance. By and large, these jurists did not employ the udd maxim liberally. Mliks followers were an exception to the rule, andsurprisinglyemerged as broader champions of the rule than the Iraqi jurists. Nor did they offer broad based theories about definitions of shubha. Instead, they were intent on reporting cases of udd imposition versus aversion without necessarily relying on a well-defined concept of shubha that the udd maxim invokes. Typically, they looked to evidentiary infirmities for udd avoidance, and insisted on udd imposition in the substantive criminal law.
1230/1815), shiya, 4:337 (wa-qad warada idra l-udd bil-shubaht ...); Azhar, al-Thamar al-dn, 617 (citing the udd maxim as a Prophetic adth). 261

An exception was Ab anfa where he placed primacy on the value of contracts; thus, udd avoidance was easily absorbed into his jurisprudence of substantive criminal law. Regardless, all jurists recognized shubha as a add-averting element of criminal law proceedings, but they largely relegated determination of that shubha to a case-by-case basis in the courts, without delineating shubha or at least model cases of it. That was the task taken up by the next generations of scholars.

262

CHAPTER 4 The Expansion and Contraction of Doubt Jurisprudence: Substantive, Procedural, and Interpretive Shubha
I.

Introduction After the early (pre-professional) period of the first three to four centuries

that saw the udd maxim in wide circulation, professional jurists further developed the jurisprudence of doubt. That is, they built up complex theories around the concept of shubha. Conceiving of the maxim as a adth, most jurists (anaf, Shfi, Mlik, and Sh) came to invoke it regularly in legal treatises detailing how udd laws established in past scenarios are to apply to new cases. In considering new and sometimes hard cases, these jurists constructed multifaceted conceptions of what constituted the types of doubts and ambiguities that warranted application of the maxim. The udd maxim remained a central pillar of criminal law and of the jurisprudence of legal maxims more broadly throughout the classical period. The 7th/13th century saw the rise of entire compendia devoted exclusively to the most authoritative and enduring maxims. In this legal maxims literature, the udd maxim figures prominently. Nonetheless, broad agreement on the centrality of the maxim in the mainstream did not mean general agreement on its meaning or appropriate use. Proponents of the maxim differed significantly in their definitions of the types of doubts or ambiguities that would trigger it. They also differed as to the rationales justifying the principle. This chapter examines the variations in these legal doctrines of doubt with an eye to the factors and rationales that drove them. I begin with the doctrines of shubha

263

developed in the anaf school, as the dominant one for much of Islamic legal history, then examine shared concepts in the Shfi and Mlik schools that converged around theories of doubt within regimes of Islamic legal pluralism. I end with a discussion of the limitations that substantive moral values placed on the expanded notions of shubha developed in these schools. While demonstrating the diversity of thought between and among Islams legal schools in this professional period, I will point to many of the examples that jurists used to fill out their doctrine. Those examples as served as model cases that drew on actual earlier precedents and served as normative guides to cover analogous types of cases that would arise in the future; they provided frameworks to subsume new cases under the rubric of the udd maxim and the various categories of shubha that emerged and/or were labeled during this period. Review of these shubha categories and their accompanying model cases reveals a picture of the udd maxim as the central governing principle of Islamic criminal law in matters of both substance and procedure.
II. Subjectivity and Mens Rea: anaf Shubha

A. Developing anaf Shubha anafs developed the doctrine of shubha gradually. By the 4th/10th century, once the udd maxim had acquired Prophetic authority, anaf jurists were free to fold it into the very definition of substantive criminal laws. They could also push the maxim to a position of centrality in their chapters on criminal law in legal treatises. By the time of the rise of legal maxims literature as a genre, as shown in the work of 10th/16th century jurist Ibn Nujaym (d. 970/1563), the udd maxim not only appeared in the discussions of criminal law in legal treatises but framed them. Over this vast

264

expanse of legal history, the maxim was transformed from a substantive principle taken to reflect prophetic precedent to a textual rule issued by the Prophet and back into a substantive principle framing criminal law. As adths, the maxim and instances of udd avoidance served as bases for outlining model cases of application. From these cases was extracted a broader principle to govern the entire field of criminal law: a legal maxim that expressed core substantive and interpretive principles of anaf law. Ab Zayd al-Dabs (d. 430/1039) was the first known leading anaf to move beyond the incidental negative acknowledgement of shubha of the earlier period, wherein udd avoidance was generally relegated to evidentiary matters whenever there was no clear statement of law. He highlighted the concept of shubha and folded it into the law positivelymaking it central to the entirety of criminal law by integrating entire sections specifically devoted to detailing instances of shubha in his discussion of each add crime. Thus, for zin, he first lays out the major issues and points of difference circulating amongst anafs and others up to his time for each major division of criminal law.1 Within this discussion, he devotes an entire section to detailing the instances of shubha that may arise.2 Some of the scenarios that he discusses are by now familiar: if a woman enters a marriage contract that is indisputably defective (e.g., marriage during a womans divorce waiting period), even if she and her spouse know of
1 See Abu Zayd al-Dabs (d. 430/1039), Kitb al-Asrr, in Debbusinin El-Esrar fil-Ul vel-Furu Adli Eserinin Tahkik ve Tahlili, ed. Salim zer (unpublished PhD thesis, Erciyes niversitesi [in Kayseri, Turkey], 1997): 151-1945, 1213-33. He generally divides sections into discussions of substantive elements and evidentiary/ procedural elements, and he places shubha in the middle of the two, often with an added section on carrying out the sentence. The sections in the chapter on zin are as follows: fal al-rukn walmaall (substantive elements), fal al-shar (same), fal al-shubha (shubha), fal man yajib alayh wilyat aliqma (sentencing). See ibid.
2

Ibid., 1220-23 (fal al-shubha). 265

the illegality of consummating the marriage, they would not be add-eligible by Ab anfas rule though they would be according to his disciples Ab Ysuf, Shaybn, and Zufar. The reason that they would not incur the add sanction under Ab anfas rule is the presence of what we may call contractual shubha, which he took to have arisen as soon as two parties formed a contract. For him, the defect may invalidate the contract but the form of the contract nevertheless creates some question about whether the sex acts done under color of the contract, even if defective, can render the couple add-liable. For the latter opinion, the add sanction would apply simply because there is no shubha in fact. In other words, Ab Ysuf and Shaybn held that the contract in this scenario is per se void and they argue that this is so by consensus, such that no contract comes into being in the first place. For them, it is analogous to trying to sell a free persona non-starter from the first instance because of the invalidity of that aim.3 In these and other scenarios that Dabs adduces, he highlights differences between the two currents of anaf thought on add liability as well as similarities between them in their regard for shubha: both currents converge at the point of saying that wherever shubha is present, add liability is voided.4 Throughout his discussion, the grounds for udd avoidance concern ambiguities about the substantive criminal law, mostly centered on the law of contract, though Dabs outlines some evidentiary grounds as well.
3 Ibid., 1221 (per se void: bil).
4

Further examples include: (1) prostitution (lit., a contract to rent a woman for sex), (2) a temporarily insane man having sex with a slavewoman then coming to his senses after the fact and attempting to buy or marry her to make the act licit, (3) a man having sex with the slavewoman belonging to his wife, (4) a man admitting to having sex with a woman who denies it, (5) a woman having sex with a minor or insane man. Ibid., 1221-23. NB: The currents do not always break down as pitting Ab anfa against his two students; for instance, the second scenario here shows Ab anfa and Shaybn agreeing against the opinion of Ab Ysuf. 266

In a section on proof (ujja) Dabs further specifies instances of udd avoidance on evidentiary and procedural grounds as he continues his review of intraanaf differences.5 For example, if someone confesses to having committed fornication and four witnesses testify in affirmation that he committed the crime, Ab Ysuf holds that the person nevertheless is not add-eligible. Shaybn maintains that he is, because of the confession affirmed by the testimony, which removes any doubt that might be left by a single confession (that is, if the person confessed once and without corroborating testimony). Ab Ysuf counters that the witness testimony is inadmissible unless there is a genuine dispute, which does not exist in cases of confession. That being the case, a single confession is insufficient to establish add liability for zinthe minimum requisite number of times being four. The single confession creates a sort of confessionary doubt (shubhat al-iqrr), says Ab Ysuf, and the add is to be avoided because of the maxim that udd sanctions are avoided in cases of doubt.6 Similar issues arise in non-zin crimes in the respective sections on shubha. For defamation,7 Dabs posits that, if four witnesses testify that a man committed adultery with one woman and four other witnesses testify that he committed adultery with another woman, the accused receives the sentence of death by stoning for the act; but if five perjure themselves (leaving only three witnesses to the act), those five will be collectively responsible for a quarter of the blood money paid to his family for wrongful death and will receive a add punishment for defamation according to Ab anfa and
5 Ibid., 1223 (describing the proof (ujja)).
6 7

Ibid., 1229 (fa-tabq l-shubha wal-udd tusqa bil-shubaht). See ibid., 1239-43 (fal al-shubha: listing scenarios). 267

Ab Ysuf. Shaybn would avoid imposing a add punishment on the perjured witnesses, because of his view that legally, the crime of adultery was established at the time of trial. Thus, if members of each group of witnesses perjure themselvesmaking their testimony inadmissible in one context (the adultery accusation) to avoid a punishmenttheir testimony should not be regarded as truthful in the other context (the defamation charge) to incur one.8 Their perjury has created another type of shubha that counsels udd avoidance for two separate crimes. On theft, Dabs continues follow the strategy of the earliest treatise-writers in first laying out the core elements of the crime before discussing instances of doubt. Theft includes the following elements in anaf law: a taking, from a secure location, of a minimum actionable amount.9 Once those elements are met, Dabs says, the add punishment is obligated unless there is some external factor that requires avoidance, a caveat that explains why he begins with the rule then [focuses on] the external factors that require [a finding of add-averting] shubha.10 In discussing some of those factors, he mentions disputes about whether a add punishment applies for a mere attempt or an uncompleted theft. If someone enters a secure location and gathers the goods there in preparation to steal them, then throws them onto the street and exits the premises, intending to collect the items on the other side, will he be add-eligible if arrested upon exit? Dabs holds that he will be, because throwing the goods out of the secure location to collect them on the other side signals a clear intent to steal them, and it is but a dishonest legal stratagem (la) to suppose that this does not constitute a
8 Ibid., 1240.
9

Ibid., 1193. Ibid., 1200. 268

10

taking. Zufar, however, disagreed, holding that the throwing out calls into question whether there was a taking and therefore creates a doubt about one of the core elements of the crime of theft (shubhat al-adam).11 This shubha of deficiency is thus another type of shubha, referring to a deficiency in the completion of a substantive criminal element.12 Another type of shubha, Dabs details, is shubha that removes [add liability] after the completion of the crime by some [evidentiary] contingency.13 He addresses this type of doubt in the section devoted to shubha.14 Here, the old example that arose in afwns Case is first on his list. If a thief comes to own a stolen item after being sentenced but before the sentence is carried out, he holds that the add punishment is to be avoided.15 Shfi, he notes, disagrees, but Dabs counters him point-by-point on the bases of his disagreement in an attempt to justify the universal anaf rule that udd avoidance applies in such cases. He reads afwns Case as providing support in his favor and against Shfis reading. According to Dabs, the Prophet did not exclaim if only you had [gifted the stolen item to him before you came to me] out of any compunction about applying the sanction, for imposing udd sanctions was a known obligation performed out of subservience to the divine and as a means of spiritually purifying the offender. The Prophet only made that statement, Dabs
11 Ibid., 1199. See Ibid., 1205 (defining shubhat al-adam as a deficiency in an element or condition for completing of the crime: nuqn al-sabab wal-shar). Cf. ibid., 1200 (discussing the punishment for highway robbery, and noting that where there is shubha (here: shubhat al-adam), the udd maxim applies to avoid the add sanction: wal-shubha tudri al-add...).
13 14 12

Ibid., 1205 (shubha musqia bad tamm al-illa bi-sharih).

Ibid., 1205-11. The other type of shubha (of deficiency) was a substantive doubt that he covered in the section of the substantive definition of theft beginning that chapter.
15

Ibid., 1205. 269

maintained, because he did not want the crime to be known publicly; moreover, some believe that he did not in fact impose the add punishment under the circumstances.16 In the chapter on wine consumption, Dabs launches a defense of the anaf acceptance of nabdh and other non-wine intoxicating drinks through acknowledging but interpreting away Prophetic adths that Shfi adduced for a contrary rule. On the basis of the anaf rule, Dabs discusses intra-anaf differences as to when add liability is due or may be avoided for different substances.17 One scenario involves a non-Muslim who lives outside of Islamic territory and wages war against Muslims, then converts but continues to drink wine and claims that he did not know it was illegal. Zufar held that this man would technically be add-liable because ignorance will not excuse his failure to ask about the norm in Islamic lands once he had entered them. The doctrine of udd avoidance by way of shubha would not then apply because the man had what might be deemed constructive knowledge of the prohibition; and there is no proof to the contrary.18 But for equitable concerns,19 Dabs says, the add should not be imposed, following the precedent that occurred during Ab Bakrs time when Umar avoided imposing the add sanction for drinking when a recent convert swore that he had not heard of the Qurnic verses prohibiting drinking.20

16 Ibid., 1205-06. For further discussion, see Qudr, Tajrd, 11:5989-90 (noting that at least one narration reports that the Prophet did not apply any add sanction).
17 18

See Dabs, Asrr, 1244-50 (kitb al-ashriba).

Ibid., 1250-51 (fa-amm fm tusqa bil-shubaht fa-l li-anna l-dall law qma wa-fh shubha mnia l-add fa-kayfa idh lam yaqum ). Ibid., 1250 (istisn).

19 20

Ibid. For other discussions of shubha in matters of discretionary punishments, laws of retaliation, and spiritual expiation for violations of ritual law, see ibid., 231 (masil al-shubha al-musqia lil-kaffra), 1122 (kitb al-diyt: fal al-shubha bil-la); 996-1007 (kitb al-ikrh). 270

In this way, throughout his treatise, Dabs highlighted difference and ambiguity together, pointing out instances where reasonable jurists both within his school and from without could disagree. Sometimes, the disagreement was about whether there was cause for shubha, or whether jurists bent over backward even to the point of implausibility to find it; but it was never about whether shubha in and of itself was add-averting or that jurists should take cognizance of udd avoidance when considering the law. These latter questions were expressed by the udd maxim, which Dabss discussion of shubha folded into every discussion of criminal law on both substantive and procedural grounds.21 During the same period in Baghdad, head of the anaf school in Iraqi lands Amad b. Muammad al-Qudr (d. 428/1037) also rendered the udd maxim central in his discussions of criminal law. He did not make separate categories for shubha. Instead, he detailed scenarios of it in extensive discussions that explored and defended the anaf position on disputed areas of criminality. Take just one area of law: sex crimes (zin). After detailing the contours of the law, Qudr raises six scenarios that
21 Incidentally, Dabs and an earlier scholar Ubayd Allh al-Karkh (d. 340/952) are regarded as the first anafs to pen works of legal maxims: Tass al-naar and Ul respectively (see, e.g., Wolfhart Heinrichs, art. awid Fihiyya, EI2, supplement, 12:517). However, those works list presumptions (ul) of anaf law, reflecting both substantive rulings and methodological principles particular to that school. These presumptions are short statements of law explaining or justifying dominant anaf positions and differentiating them from positions of other schools in disputed areas; each stated presumption is accompanied by examples of application. See, e.g., Ab Zayd al-Dabs, Tass al-naar, ed. Muaf Muammad al-Qabbn al-Dimashq (Beirut: Dr Ibn Zaydn; Cairo: Maktabat al-Kulliyyt al-Azhariyya, n.d), 127 (listing presumptions governing theft and when udd liability versus udd avoidance is warranted, in contradistinction from divergent Shfi views). These works are examples of takhrj literature (takhrj al-fur al l-ul), the stated purpose of which is to show the relationship between school-presumptions and substantive legal rules; as such, takhrj works are related to treatises on maxims but distinct from them in content and purpose. For an introduction to takhrj literature, see Ahmad Atif Ahmad, Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence (Leiden: Brill, 2006), xxii (presenting six works of takhrj and arguing that the juristic treatment of both methodological principles and substantive legal rules stimulated advanced juristic minds to consider the need for constant adjustment of both the theoretical and practical aspects of the law). 271

fall outside of the literal definition of zin, and as such had become subjects of major controversyparticularly between Shfis and anafsregarding whether certain acts could properly be defined as zin crimes or whether, rather, udd avoidance was due. Presumably, because there was no clear statement from the foundational texts to place these acts in the main section of zin laws, Qudr grouped these model cases under the title doubts and ambiguities (shubaht). The six scenarios concerned whether a man will be add-liable for: coercion of a man to commit zin or to rape a woman; having sex with a woman thinking that he had a legal relationship with her that make her licit, but who it later becomes clear is illicit; having sex with a woman with whom he cannot legally enter into a marriage contract to make sexual relations licit; prostitution (or paying a woman for sex); male sodomy; or bestiality. For each scenario, Qudr laid out the nature of the difference between anaf and Shfi positions, the legal basis for defending the anaf rule, and counter-points to possible Shfi objections to his defense. Throughout, the udd maxim played a key role, arising almost as if an arbiter in the dispute between the two schoolsthough not with absolute sway. For example, in the first scenario, when discussing coercion and rape, he noted a anaf position that there was add liability as against the Shfi position that there was not. He defended the anaf view based on Ab anfas doctrine that fear prevents desire and arousal,22 so their presence signifies voluntariness.23 If Shfis were to respond by arguing that the Prophet required judges to follow the udd maxim,24 he would respond that the validity and applicability of the maxim as a general
22 Ibid., 11:5896-98 (al-khawf yunf l-shahwa wal-intishr).
23 24

Ibid. (discussing voluntariness literally as choice: ikhtiyr). Ibid., 11:5896 (quoting the udd maxim as a prophetic adth: idra l-udd bil-shubaht). 272

principle governing criminal law is beyond dispute. The dispute is about whether there is shubha in this case. And on their evaluation of matters of fact, anafs have concluded that there is not. As for acts of prostitution, i.e., men renting women for sex, Qudr again toed Ab anfas line that the semblance of a contract was sufficient to create the type of shubha that required udd avoidance. As such, sex acts under those auspices cannot be considered zin by definition.25 Furthermore, Qudr added, there was an early precedentone that even Shfi would consider textual proofto back up his position. The sources report that during the time of the second caliph Umar, a woman sought water from a shepherd, who refused to give it until she had sex with him. When she did, the matter was brought before the caliph for adjudication, who avoided imposing the add punishment.26 One reading would be that he did so on the basis of necessity; the woman had not acted voluntarily or with criminal intent. Another reading especially in light of the fact that Umar seems to have avoided imposing the add sanction on either partywas that this report should be understood to mean that Umar recognized the exchange as a de facto, though defective, marriage contract that at least created shubha as to add liability.27 A similar argument applied to male sodomy. Whereas Ab anfa held that no add liability would result, Shfi either treated it like zin or held that the death penalty applied automatically. After listing textual legal and rational bases to defend

25 Ibid., 11:5903, 5908-09.

26 27

Ibid., 5908-09 (fa-daraa anh l-add). Ibid. 273

Ab anfas position,28 Qudr ends with a note about doubt. He outlined differences of opinion as to whether male sodomy falls under the technical definition of the add crime called zin, noting that some scholars assert that it certainly does and others insisting that it does not. The disagreement, for him, creates doubt (here: shakk); and in the face of doubt, the add sanction is not due. It is to be avoided.29 The same, he held, applied to questionable or disputed instances of theft and other areas of criminal law.30 Leading anaf scholars of the ensuing years developed the doctrine of shubha in their legal treatises by making it increasingly central to criminal law in both Eastern (Persian and Central Asian) and Western (Iraqi and Syrian) lands. The Persian scholar Shams al-Aimma al-Sarakhs (d. 483/1090) approached shubha similar to the treatment given it by Qudr of just a few generations before in Western lands. In his celebrated work of law, al-Mabs, which became one of the central works of anaf law with enduring relevance even in later periods, Sarakhs listed ambiguous cases (shubaht) invoking questions of udd avoidance after laying out the basic elements of the crime on textual bases.31 His list of scenarios overlapped with, but added to, the lists of Qudr and previous scholars. In addition to coerced sex and rape, prostitution (or short-term contracts for sex),32 Sarakhs discussed intra-anaf differences over add liability for the following: sex between a man and the
28 Ibid., 5909 (citing Qurn, 4:16: requiring only some type of discretionary punishment (adh) on two men who engage in male sodomy; making a linguistic argument that male sodomy (liw) is distinct form fornication or adultery (zin) by convention; etc.).
29 30

See ibid., 5910.

For an analysis of afwns Case, see Chapter 3, notes 135-41, and accompanying text (citing Qudr, Tajrd, 11:5986-87).
31 32

See Sarakhs, Mabs, 9:41ff. Ibid., 9:61, 66. 274

slavewoman of a relative within the household on the mistaken belief that she was licit,33 sex between a Muslim and non-Muslim,34 and sex between a man and the slavewoman belonging to a free woman with the claim or belief that he had bought her.35 The Syrian scholar Ab Bakr b. Masd al-Ksn (d. 587/1191) expanded the scope of shubha further. He folded the concept of shubha into the very definition of the substantive crime of zin, making its absence an element of the crime itself. He defined zin as follows: voluntary non-anal sexual relations between a man and a (living) woman in Muslim territory (dr al-adl), provided they are subject to Islamic law (iltazama akm al-Islam), and in the absence of the existence or semblance of a masterslave or marital relationship (aqqat al-milk, shubhat al-milk, aqq al-milk, aqqat al-nik, or shubhat al-nik), and in the absence of doubt or mistake in areas of legitimate confusion about either (shubhat al-ishtibh f mawi al-ishtibh f l-milk wal-nik).36 Here, Ksn is not just defining zin, but attempting to fold in the results of multiple juristic debates over the centuries about both the elements and conditions required to meet the technical juristic definition and/or to secure a zin conviction. They debated voluntariness and coercion, whether the relations were anal or vaginal, whether bestiality or necrophilia counted, where the act occurred, whether the parties
33 Ibid., 9:61 (disagreeing with Zufar that the add is due in such cases on the basis that the offenders subjective belief of legality created the type of shubha warranting add avoidance because he had some reasonable basis to think that he was entitled to have sexual relations with slavewomen in or belonging to those in his household) (citing as possible textual support: Qurn, 93:1, wherein God tells the Prophet that he made him self-sufficient; the case of the slave who stole a mirror but was not add-eligible because he lived and had free access to the household from which the mirror was stolen; and early cases wherein Umar purportedly avoided imposing the add punishment on a man who stayed as a guest in another mans household in Yemen and spread rumors that he had sex with the lady of the house on the basis that the man had not understood that it was wrong); 65 (similar scenario).
34 35 36

Ibid., 9:63. Ibid., 9:66 (daraa anh al-add). Ksn, Badi al-ani, 9:4150. 275

had to be Muslim or not, what kind of relationships were legally validating, and where the law would entertain the plausibility of confusion or mistake. All the items on the list were once (and some remained) matters of shubha, and the last items were meant to cover new scenarios of a similar type that were not specifically folded into the definition of the crime.37 For evidence, we look to what he specifically enumerated as cases of shubha. His list includes the following unnamed categories of doubt or ambiguity (1) missing criminal elements, such as the absence of majority, sanity, or heterosexuality,38 (2) defective contracts, such as marriages between legally barred partners, a man having sex with a jointly owned slavewoman, or marriage to a woman while in the midst of her divorce waiting period from a prior marriage,39 (3) mistake of law, such as a man having
37 As we will see, this definition reflected certain positions held within the Shfi school that were not universally agreed upon. Later jurists would offer competing definitions that added or dropped one or another of the elements or conditions (shur) for add liability on accusations of zin. Nasaf (d. 710/1310), for example, offered a simple definition of vaginal sex without a legally validating relationship (milk) and without shubha, and Zayla combined this definition with that of Ksn for the following formulation: voluntaryfrom both male and female perspectivesvaginal sex of a fully competent legal agent with a [naturally] desired partner whether now or in the past without a legally validating relationship or the semblance of one [committed] in Islamic territory: wa mukallaf ian mushtaht lan aw miyyan f l-qubul bi-l shubhat milk f dr al-Islam aw tamknih min dhlika aw tamknih. We see that Zayla has added language to cover new scenarios (such as male rape) and reformulations to cover existing ones (such as natural desire to exclude bestiality and necrophilia). Ibn Nujaym commented that Nasafs definition was incomplete and underinclusive, and that Zaylas definitionwith some modificationwould be more accurate. Ibn Nujaym offered the following formulation: voluntary sex of a [male] legal agent in the vagina of a [naturally] desired [woman] without a legally validating relationship (milk) or the semblance of one: al-zin al-mjiba lil-add = wa mukallaf f qubul al-mushtaht rin min milkih wa-shibhih an aw). Commenting on Ibn Nujayms formulation, Ibn bidn in turn attempted to collapse the definition even further. The basic definition of add-incurring zin, he said, is penetration of a penis into the vagina of a naturally desired woman: kawn al-ashafa f qubul mushtaht; he held that the additional elements are merely conditions (shur) that are not part and parcel of the essence of the act; it is implicit that he defines the act as having been committed illegally, that is, without a legally validating relationship. For a discussion of these positions, see Ibn Nujaym (d. 970/1563), al-Bar al-riq, commentary on Nasafs Kanz al-daqiq (above), and on the margins Minat al-khliq al l-Bar al-riq by Ibn bidn ([Cairo?], n.p., 1893?), 5:4ff.
38

Ibid., 9:4150-53 (noting that the following categories may not be add eligible: minors and the insane, those who engage in male sodomy, necropheliacs, rape victims, non-Muslims (arb)). Ibid., 9:4253-55 (noting Ab anfas opinion that such marriages required udd avoidance, but that this is disputed by his two students Ab Ysuf and Shaybn, but noting that in both cases, claims of 276

39

sex with a slavewoman belonging to his parents or held on security for another transaction, provided the mistake (ishtibh) is plausible in that it rests on some legal basis that could fairly be said to have given rise to the belief of legality,40 and mistake of fact in some situationsas in when the wrong woman is delivered on the wedding night after an arranged marriageas was typicalheld essentially in absentia.41 Ksn has named only two of these multiple categories specificallylegal mistake (shubhat al-ishtibh) and contractual ambiguity (shubhat al-aqd), but his aim is clear. Any instance of shubha of whatever categorywhether based on objective factors surrounding substantive criminal elements and legal bases for certain acts or subjective ones reflecting the offenders state of mindwas subject to the rule of udd avoidance. In sum, he explains the principle in considering shubha is the adth avoid udd punishments in cases of doubt.42 In other words, in the theory of criminal law, udd sanctions are punishments for completed crimes, which are not present with shubha.43 The udd maxim is an expression of this doctrine. Ksns contemporary in the East (Central Asia), Burhn al-Dn al-Marghnn (d. 593/1197), gave shubha and the udd maxim a similar place of prominence in his
ignorance should suffice as evidence for lack of criminal intent as dictated by the udd maxim (li-annah yudra [al-udd] bil-shubaht)). Ibid., 9:4156-57. Thus, having sex with the slavewoman belonging to a brother or sister would not give rise to udd avoidance, because there is no text that can create the impression that there is any automatic right to enjoyment of siblings property. See ibid. Ibid., 9:4158-59 (noting that this is not legal doubt (shubhat al-ishtibh) as some claim, but shubha that rests on some legal basis and as such requires add aversion; also noting Ab anfa and Ab Ysufs opinion that there is no add avoidance for cases of illicit sex based on mistaken identity when the man could simply ask about the identity of the woman he claims to believe is licit; and finally, noting Zufars contrary opinion based on what he deemed to a type of reasonable supposition (ann) to give rise to a legal basis for add-averting shubha (li-annah yudra anh al-add).
42 43 41 40

Ibid., 9:4150 (idra l-udd bil-shubaht). Ibid. 277

chapter on criminal law in a treatise that would become perhaps the most important work of anaf law in that it had enduring influence over anafs of subsequent ages.44 In the Hidya, Marghnn begins the section on criminal law by laying out not the disputed or requisite elements to meet the definition for zin (as did his forebears), but by outlining evidentiary standards of proof to secure a conviction. These evidentiary standards are stringent and Qurnically grounded: for zin, it requires four witnesses to the act by four reliable witnesses who offer uniform testimony as to the time, manner, and place, along with an exhibited understanding of the technical meaning of zin.45 The judge is not to simply accept the testimony at face value, but is to ask each witness about what he saw, the method in which the sex act was performed, where it occurred, what time, and with whom. This draws on the Prophets early precedent of questioning Miz which set in place the requirement to approach udd accusations with caution.46 It may be that some act other than [the technical definition of zin] occurred, or that
44 His treatise, al-Hidya, was the subject of numerous commentaries, supercommentaries, and glosses spreading from Central Asia to Arab lands, Turkish lands to the Indian subcontinent, and beyond. This work is famous in Western legal and colonial circles because of an 18th century translation by Charles Hamilton used to facilitate British colonial rule in India that accommodated Muslim family laws; interestinglyas he explains himselfhis translation is from a Persian translation of the Arabic original, which explains the Persianized forms of his English renderings of technical legal terms from the Arabic. In November 2000, a group of scholars gathered to discuss Marghnn at a conference organized by the Uzbekistan Academy of Sciences near his birthplace. For further discussion of Marghnn and the legacy of his work arising out of that conference, see Y. Meron, Marghnn: His Method and His Legacy, Islamic Law and Society 9, 3 (2002): 410-16 (arguing that Marghnns thought was innovative and his writings represented a turning point in anafism that shaped the destiny of [anaf] law for at least seven centuries after him). For the Hamilton translation, see Charles Hamilton, trans., The Hedya, or Guide: A Commentary on the Mussulman Laws (translated by the order of the Governor-General and Council of Bengal [Warren Hastings]) (London: T. Bensley, 1791) (repr. as The Hedaya: Commentary on the Islamic Law (New Delhi: Kitb Bhavan, 1985)). Marghnn, Hidya (2000), 2:735-36 (quoting Qurn, 4:15: produce four witnesses from amongst yourselves [to prove accusations of zin]: fa-stashhid alayhinna arbaatan minkum; Qurn, 24:4: defining defamation as those who make accusations of zin but do not produce four witnesses to prove it: thumma lam yat bi-arbaati shuhad; and a adth requiring four witnesses: iti bi-arbaa yashhadna al idq maqlatik; and explaining that the four-witness requirement gives meaning to the doctrine of concealment (satr) and publicity in that there would be add liability only for sex crimes so public that they were open to four witnesses observing the acts).
46 45

Ibid., 2:736 (itiy). 278

the act was committed in non-Muslim lands [for which there is no add liability in Muslim lands] or at a certain time [when the perpetrators were not liable], or there was otherwise some legal doubt (shubha) of which the accused or the witnesses are unaware .47 For these reasons, the judge must exert the utmost effort to inquire about the circumstances surrounding the alleged crime and the character of the witnesses themselves with the express aim of avoiding the add sanction.48 Why? Because the Prophet himself directed judges to avoid udd sanctions as much as you can.49 As such, the absence of shubhaon evidentiary or substantive grounds50was regarded as a necessary element of the definition of zin. Marghnn gives that definition after discussing the evidentiary matters, and again, places the udd maxim front-andcenter. The precise meaning of zin that warrants a add sanction, he outlines, is a man having vaginal sex with a woman without a legally validating relationship of semblance of one [lit.: without an ownership or quasi-ownership status].51 Supporting that definition, and the inclusion of the non-shubha requirement, he says, is the prophetic adth, avoid criminal sanctions in cases of doubt.52 As did Ksn, he lists several cases of shubha scenarios that have arisen in prior legal debates amongst jurists. But he also defines shubha. He delineates two types: mistake of law or fact (shubha f l-

47 Ibid.
48 49 50 51 52

Ibid. (yastaq f dhlik itiyan lil-dar). Ibid. (idra l-udd m staatum). Ibid., 2:248 (taarr an al-milk wa-shubhatih). Ibid. (wa al-rajul al-mara f l-qubul f ghayr al-milk wa-shubhat al-milk). Ibid., 2:748 (idra l-udd bil-shubaht). 279

fil, also known as shubhat ishtibh) and legal ambiguity (shubha f l-maall, also known as shubha ukmiyya).53 The first, he says, depends on the offender. It refers to the mistaken belief that a legitimate textual or factual argument supports ones position.54 The second does not depend on the offenders state of mind, but is an objective inquiry into the law; it refers to conflicts of legal texts, as when one text renders an act legal and another marks it as illegal.55 He recognizes a third type as wellAb anfas contractual shubhain saying that there is another doubt established by contract.56 But he counts it under the first category, because a contract provides a legal basis57 that gives rise to the belief of legality when an act is in fact illegal.58 Marghnn specifies that there are several types of shubha.59 In listing then elaborating on each,60 he is again detailing the debates and conclusions of earlier jurists on issues of add liability (here: for zin) that arose after the early period. His discussion of specific terms is a restatement of those major debates and the dominant
53 Ibid.
54

Ibid. (manh an yaunn ghayr al-dall dallan wa-l budda min al-ann li-yataaqqaq al-ishtibh). He recognizes a third type of shubha alsoAb anfas contractual shubha (saying that it is established by contracttathbut bil-aqd)but counts it under the first category, because a contract provides a legal basis (dall) that gives rise to the belief of legality when an act is in fact illegal. Ibid. (al-thniya tataaqquq bi-qiym al-dall al-nf lil-urma f dhtih wa-l tatawaqqaf al ann al-jn watiqdih). Ibid. (tathbut bil-aqd). Ibid. (dall).

55

56 57 58

Ibid. In his criticism of Marghnns work, anbal scholar (and student of Ibn Taymiyya and Ibn alQayyim) Ibn Ab al-Izz (d. 792/1390) considers this category bogus, because for him it plays with the Qurnic definitions of contract. The Qurn defines marriage as between a man and an eligible woman the categories of which it specifies; accordingly, attempts to marry legally barred women do not give rise to a contract and should not then create any type of shubha. See Ibn Ab al-Izz, Tanbh, 4:148-49.
59 60

Marghnn, Hidya (2000), 2:748-49.

Ibid., 2:749-55. He applies a similar analysis to wine-drinking and other areas of law on substantive and procedural grounds, but none of his discussions of udd avoidance are as detailed as his treatment of zin. 280

anaf opinions surrounding udd avoidance. Further, his distillation of those debates into two types of shubha is an attempt to organize the specifics into more general frameworks that could be useful for approaching new cases. After Marghnn, subsequent generations of anaf jurists mostly elaborate on his formulation. In the 8th/14th century, Ab l-Barakt al-Nasaf (d. 710/1310) and Fakhr al-Dn al-Zayla (d. 743/1343) elaborate on the categories of shubha that he identified. Nasaf in the Eastfrom the Persian town of Nasafpresents the same two categories and examples of each. His work is like an abridgement of Marghnns, giving the basic rules and laying out model cases of their application from prior precedents that had already been restated in earlier law (fiqh) works.61 Commenting on Nasafs short work, Zayla in the Westin Cairopursued a similar tack, except that he elaborates on each category and model case.62 He repeats Marghnns definition of zin, which includes the absence of shubha as an essential element, reiterates Marghnns explanation of how and why the doctrine of udd avoidance governs criminal law, and elaborates on the instances of shubha that have arisen in anaf law.63 He contributes a slight reformulation of the shubha categories, by explicitly adding contractual shubha (shubhat f l-aqd) to Marghnns categories of mistake (shubha f lfil) and legal ambiguity (shubha f l-maall); but he collapses contractual and legal ambiguity into a single category of legal uncertainty (shubha ukmiyya), explaining that both refer to situations where the legal rule itself is unclear.64
61 Nasaf, Kanz al-daqiq, 1:563-66.
62 63 64

See Zayla, Tabyn, 3:539ff. Ibid., 3:539-68. Ibid., 3:566-67. 281

In the 9th/15th century, other anaf jurists follow suit, again taking Marghnn as a starting point often with respect to Nasafs reformulation. In that vein, the originally Turkish scholar who became a judge and prison official in Cairo, Badr al-Dn al-Ayn (d. 855/1451), commented directly on both Marghnn and Nasafs works and their treatments of shubha.65 His contemporary Egyptian colleague Ibn al-Humm (d. 861/1457) comments on Marghnns formulation of shubha as well.66 The period leading up to Ksn and Marghnns formulations of anaf doctrine through the 5th/7th century was a time of increased adherence to schoolspecific doctrines and expansion of those doctrines through commentary and gloss. This was called the age of taqld, which typically refers to adherence to a schools methodological principles and substantive rulings, and here is referred to as the professional period. Many scholars of Islamic law have long tagged taqld as nothing more than blind imitation and pejoratively dubbed the period one of stagnation and of the closing of the gates of ijtihd.67 But a recent trend in scholarship on Islamic legal history has seen scholarship re-evaluating the function of the taqld doctrine during that period as a rule-of-law regime. With the waning and breakup of the Abbsid empire in the 5th/11th century, these scholars argue plausibly that taqld was a

65 See Ayn, Binya; idem, Ramz al-aqiq.

66 67

See Ibn al-Humm, Fat al-qadr.

See, e.g., Maman, Falsafat al-tashr, 105-07 (noting that jurists had come to a tacit consensus in the early 4th/10th century on the closing of the doors of ijtihd, which led to societal retrogression and stagnation that manifested in the law in a dogged reliance on abridged law manuals (mukhtaars)); Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964), 70-71; Fazlur Rahman, Islam, 2nd ed. (Chicago: University of Chicago Press, 1966) (orig. London, 1966), 77-78; J.N.D. Anderson, Law Reform in the Muslim World (London: Athlone Press, 1976), 7. 282

way of securing legal stability, continuity, and predictability through increasingly corporatized schools of law that a radically decentralized state could not.68 Whatever the socio-legal function of taqld, there was certainly a sense of narrowing in the methods and doctrines for legal derivation and interpretation after the formative period of the first four centuries. It was at that point that the disciplines of adth studies, substantive law (fiqh), jurisprudence (ul al-fiqh), and theology became professionalized disciplineshaving been constituted in firm, selfidentifying terms, with developed principles and doctrines. After this period, legal changes seem to have slowed; the radical diversity of the early period was reduced to the relatively few known, enduring schools of law and theology. Throughout, legal maxims like the udd maxim were a shadow tool related to and folded into each of those disciplines and it was one area of continuing growth in legal methodologies; the rise of legal maxims literature a couple of centuries later was the next and last major development in Islamic law; it arguably contained possibilities for broadening that scope once again.69 Beforehand, during the age of taqld, the contours of the law had not changed materially: the udd maxim was the central governing principle of criminal law and anaf jurists recognized specific types of shubha to which it applied through repeating
68 See Wael Hallaq, Was the Gate of Ijtihd Closed?, International Journal of Middle East Studies 16, 1 (1984): 3-41; idem, On the Origins of the Controversy About the Existence of Mujtahids and the Gate of Ijtihd, Studia Islamica 63 (1986): 129-41; Mohammad Fadel, The Social Logic of Taqld and the Rise of the Mukhtaar, Islamic Law and Society 3, 2 (1996): 195-233; Sherman Jackson, Taqld, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Mulaq and mm in the Jurisprudence of Shihb al-Dn al-Qarf, Islamic Law and Society 3, 2 (1996): 234ff; idem, Islamic Law and the State: The Constitutional Jurisprudence of Shihb al-Dn al-Qarf (Leiden, Boston: Brill, 1996).
69

For commentary to that effect, see Hossein Modarressi, The Legal Basis for the Validity of the Majority Opinion in Islamic Legislation, Under Siege: Islam and Democracy (Conference Proceedings), ed. Richard Bulliet (New York: Middle East Institute, Columbia University, 1993): 83ff. 283

model cases and naming three categories of shubha in which they fell. The law did flex somewhat to reach new cases and cover new scenarios of shubha, but all within that basic framework.70 With this firm settlement of shubha, anaf jurists next moved into a new phase in which they distilled the principles of the law even further. This was reflected in collections of legal maxims. Beginning in the 10th/16th century, anaf jurists compiled works devoted specifically to legal maxims that collected essential principles of law embodied in some of the earliest maxims like the udd maxim and explicated the anaf iteration of them. B. Developed anaf Shubha Ibn Nujaym (d. 970/1563) authored what came to be anafisms principal work on legal maxims, al-Ashbh wal-nair. The title technically refers to similar legal cases, by which he means to offer distinguishing principles for explaining different outcomes in cases with similar facts. In fact, his work collects essential legal maxims together with the distinguishing principles of anaf law. Included in his collection is the udd maxim, which we know to be not unique to anaf law but defined distinctly within it. As with each distinguishing principle that he announces, in his treatment of this maxim, Ibn Nujaym provides a restatement of the principle, details the legal bases for it, and explains the circumstances in which it applies according to the anaf tradition. In that vein, he essentially summarizes anafisms settled opinions on shubha. He divides shubha into three categories, following his earlier anaf forebears: (1) legal shubha (i.e., mistake or uncertainty regarding the legality of an act), (2) factual
70 See Baber Johansen, Legal Literature and the Problem of Change, 446-64 (arguing that legal change after this period came through commentaries and fatw literature, while the basic texts of the law treatises (mutn) preserved the traditional opinionsillustrating the concern with the problem of landrent and tax assessments in anaf law). 284

shubha (i.e., mistake or uncertainty regarding the facts), and (2) contractual shubha (i.e., ambiguities that may arise from a defective contract).71 He notes further that all anafs recognize the first two as add-averting shubha, but that the third type is disputedhaving been first proposed by Ab anfa but rejected by many of his schools adherents. 1. Mistake of law is an excuseIf Reasonable Legal shubha, mistake of law or legal uncertainty, is a subjective, offenderregarding type of doubt. It covers cases, Ibn Nujaym explains, where the law itself is unclear to the legal agent. If a person has a reasonable basis for believing that an illegal act is legal, there is a shubha, and the udd maxim applies to require udd avoidance. To be reasonable, the belief must rest on some textual basis. The paradigmatic example given is the case of a father taking his sons property on the mistaken belief that he is entitled to do so. A prophetic adth declaring that a son and his property belong to (or are under the care of) his father could provide a basis for a fathers beliefalbeit mistakenthat it is perfectly legal to take his sons property.72 In such cases, the
71 Ibn Nujaym, Ashbh (shubhat al-fil/ishtibh, shubhat al-maall, and shubhat al-aqd). He presents examples of each along with sundry examples of shubaht that could fit into those categories. As we will see, jurists use quite different terms to refer to similar concepts, as well as the same terms to refer to different concepts. For example, Sh jurists refer to the anaf category of shubhat al-fil or shubhat alishtibh as shubha ukmiyya, and refer to the anaf category of shubhat al-maall as shubha mawiyya. As another example, the anaf shubhat al-maall corresponds to the Shfi shubhat al-fil or in zin cases to shubha f l-mawa, where there is some mistake-of-fact on the part of the actor, which in Sh law is shubha mawiyya. Finally, shubhat al-aqd for Ab anfa refers to a shubha that arises from the presence of a contract itself and always gives rise to add-aversion, whereas for Shfis and others, it means the semblance of a contract, that is a defective contract, that may give rise to add-averting shubha. As such, I devise English terms to refer to these concepts while at the same time identifying where and how jurists discuss them in their own terms. For a table comparing the various terms, see Appendix.
72

In justifying udd-aversion in such cases, including cases where a father sleeps with his sons slavewoman, jurists typically refer to the adth in which the Prophet declared to a young man that you and your property belong to your father (anta wa-mluk li-abk). See, e.g., Ibn Qudma, Mughn, 12:459 (together with two other adths); Ibn Nujaym, al-Bar al-riq, 5:13. For the adth in Sunn and Sh sources, see Ibn Mjah, Sunan; Ibn anbal, Musnad. Cf. Ibn Idrs al-ill (d. 598/1201-2), Sarir, 3:486. 285

maxim requires add avoidance for the theft, provided the father lacked knowledge of the actual law and the criminal intent to violate it. A second example is the case of zin committed with a jointly owned slavewoman out of the mistaken belief that it is legal. Collapsing property law with family law and sexual ethics, jurists conceived of the master-slave relationship as a type of contract rendering sexual relations between men and their slavewomen licit.73 But following property law restrictions on the enjoyment of jointly owned goods, the rule permitting master-slave relations did not apply to partially owned slavewomen. Under property law, that the ownership is not absolute restricts the right of enjoyment, including sexual, which is deemed an infringement on the ownership interest of the other partner.74 An offender, in his defense, may appeal to the early rule allowing sexual relations between master and slave as a reasonable basis for his belief that the act was legal. Although this rule does not have explicit Qurnic or prophetic sanction, it is considered text because most jurists interpreted the foundational texts to allow it, forming a near-consensus that carried the weight of precedent. 75 It is therefore reasonable for a person who does not know the intricacies of property law and joint
73 Classical Islamic family law recognizes marriage and creation of a master-slave relationship as the two legal instruments rendering permissible sexual relations between two people. Not every scholar recognized the second instrument. It was disputed by prominent jurists and some theologians in Islams early period, i.e., the 1st/7th through 3rd/9th centuries. See Ibn Qudma, Mughn, 9:552 (noting an objection from asan al-Bar (d. 110/728)); see also abar (d. 310/923), Tafsr, 8:151-69 (interpreting Qurn, 4:24, and other verses to require a slavewomans consent before sexual relations with her master will be deemed permissible); Abd al-Qhir al-Baghdd (d. 429/1037), Kitb Ul al-dn (Beirut: Dr al-fq alJadda, 1981), 336 (noting the objections of some Mutazils (rationalist theologians)). For similar observations of objections amongst exegets, see al-Allma al-abab, al-Mzn f tafsr al-Qurn (Beirut: Muassasat al-Alam lil-Mabt, n.d.), 4:266-68 (alluding to the opinion of some exegetes that generalize the meaning of the Qurnic verse 4:24 to refer not to slave women but to chaste women, implying a position against the notion that master-slave relationships automatically validate sexual relations).
74 75

See Qarf, Furq, 4:1307 (shubha f l-mawa); cf. Ibn Rushd al-afd, Bidyat al-mujtahid, 2:262-63.

See, e.g., Ibn Rushd al-afd, Bidyat al-mujtahid, 2:79-80; Miqdd al-Suyr, Nad al-Qawid, 160 (citing, for attestations to prophetic and immic sanction, Kulayn, Kf; Ibn Bbawayh, Faqh; Tahdhb; Rawa). 286

ownership as applied to slavewomen to extend that rule. Here too, the ambiguous law and textual support for the mistaken belief created a add-averting shubha. As both examples illustrate, this type of shubha is subjective in that judges must look to the offenders state of mind to determine add-eligibility. Knowing impermissible takings or sexual relations cannot give rise to add-aversion, but mistakegiven the apparent ambiguity of the lawcan. 2. Mistake of fact also is an excuseif plausible Factual shubha, mistake of fact or factual uncertainty, covers cases where the law is clear but the actor confuses the facts. For instance, Islamic law unambiguously prohibits wine-consumption. What happens if a person finds a reddish liquid in front of her? If she has strong reason to believe that the liquid is juice rather than wine, even if mistaken, the maxim applies to remove add liability. But if she is unsure what the liquid is, the maxim does not apply until and unless she has made diligent attempts to ascertain what it is.76 anaf jurists elaborated on this principle of due diligence especially in cases of mistaken identity in zin laws. Islamic law unambiguously limits sexual relations to partners in a recognized legal relationship; otherwise sexual acts are considered addincurring zin. What does the law say about a man who has sexual relations with a woman whom he thinks is a legitimate partner, but she turns out not to be? For example, a man might retire to bed at night, and sleep with the woman lying there, mistakenly thinking that she is his wife or slavewoman. Or there might be an arranged marriage, where the newlyweds do not meet until the wife comes to the husbands
76 Qudr, Tajrd, 11:5899. 287

house, and the couple does not discover until after consummating the supposed marriage that the woman who arrived was not the one with whom the man has just entered a marriage contract. In both scenarios, most jurists avert the add punishment for zin.77 Many anafs recognize only the scenario of mistaken identity on the wedding night as giving rise to add-averting shubha. On the wedding night, the husband relies on information he receives from those responsible for bringing his wife to him. Their announcement provides a reasonable basis for him to believe that the woman brought to him is his wife.78 But thereafter, it is unreasonable to suppose that a man would not know his wife from another woman lying in his bed, as spouses are intimately familiar with one anotherfrom voices to mannerisms and other identifying features. Moreover, one 5th/11th century jurist explained that in his time, the mistake is especially unreasonable because it is typical for a single household to house unrelated women and female relatives, who would not be legitimate sex partners. This fact alone should encourage the husband to simply ask if he has any doubts about the identity of a woman found in his bed or anywhere else in the house before sleeping with her. In short, shubha that may arise from mistaken identity is only available if plausible; one may not rely on baseless suppositions to avert the add punishment.79
77 For Shfi discussions, see for instance, Ab Isq al-Shrz, al-Muhadhdhab f fiqh al-Imm al-Shfi, ed. Muhammad al-Zuayl (Beirut; Damascus: al-Dr al-Shmiyya and Dr al-Qalam, 1996); Ab mid alGhazl, al-Was f l-madhhab, ed. Amad Mamd Ibrhm and Muammad Muammad Tmir ([Cairo?]: Dr al-Salm, 1997), 6:444. For Mlik discussions, see, e.g., Ibn Abd al-Barr, Kf, 2:1074. Only Ab anfa and those following his opinion in the anaf school question whether udd avoidance is warranted here automatically.
78 79

Qudr, Tajrd, 11:5900 (external information as bil-khabar).

Ibid., 11:5899 (saying that this type of ann is baseless (l yastanid il sabab a)); ibid. (mujarrad alishtibh laysa bi-shubha, said in response to the Shfi argument that the udd maxim (idra l-udd bilshubaht) applies here). 288

This rule follows the minimum requirements of due diligence elaborated in other contexts of the law. For example, to ascertain the proper direction for performing prescribed prayers, a visitor or newcomer may not simply assume the direction. For the prayers to count, he must ascertain the proper direction by going to a local mosque or simply asking those in the vicinity when possible.80 So too in the context of sexual relations; failure to investigate is negligence and bars claims of shubha.81 Shubha that arises in cases of mistake-of-fact is partially subjective, as it is with mistake-of-law, in that add-liability depends on conflicting textual arguments combined with the offenders state of mind. The additional element here is a due diligence requirement. Inquiring about the facts produces information that provides a legal basis for the mistaken belief that a questionable act is in fact legal. In this sense, the shubha that arises from reasonable mistake-of-fact becomes very similar to the shubha that arises from reasonable mistake-of-law in that reasonableness and plausibility are key.82

80 Ibid.
81 82

Ibid., 11:5900 (negligence as tafr).

There is some dispute as to whether the case of mistaken identity in zin is properly categorized as mistake-of-fact or mistake-of-law. Ibn Nujaym does not discuss this case in his work on legal maxims, Ashbh, and does not place it in any category when he discusses it elsewhere. See Ibn Nujaym, al-Bar alriq, 5:15. Ksn points out that mistaken identity is not mistake-of-law (shubhat al-fil or al-ishtibh) and presumably must be mistake-of-fact insteadbecause legal consequences such as paternity flow from mistaken identity-relations, whereas they do not in cases of mistake-of-law. Ksn, Badi alani, 9:4153. Zayla disagrees, saying that mistaken identity is an instance of mistake-of-law (shubhat al-fil or al-ishtibh), except that the erroneous argument on which the offender relies is not a textual argument but an evidentiary one (i.e., the information received from women that the woman who came was his wife). This explains why paternity results here and not in mistake-of-law cases that rely on textual arguments; both, however, are mistakes of law in that they rely on some legal basis, whether textual or evidentiary. See Zayla, Tabyn al-aqiq, 3:568. Similarly, Qudr explains that the key element to be considered (al-mutabar) is the legal cause (sabab) that triggered the mistaken belief. Comparing mistaken-identity after reliance on information to defective contracts that create add289

3. Creating mistake through contract Contractual shubha is the third, disputed category. Contracts in any system create legal obligations and validate certain status relationships, such as the marriage contract. Accordingly, Ab anfa held that legal permissions that ordinarily flow from a valid contract create a add-averting shubha when a contract is materially defective. He applied this rule even where contracting parties enter into a contract knowing of the material defect. For example, a marriage contract between siblings, he maintains, averts any add punishment from the couple, even though Islamic law prohibits incestuous marriages and sexual relations. For him such marriage contracts are defective and thus voidable,83 but still create at least the semblance of a contract (shubhat al-aqd). Ordinarily, the law of contract provides some protection for defective commercial transactions pursued in the mistaken belief that they were done under color of a contract, that is, where there is a semblance of a valid contract. Ab anfa extended this norm to marriage law in his position that the semblance of a marriage contract should provide protection as well, in this case exculpating parties from accusations of zin.84 Ab anfa applied a similar logic to the case of sexual relations

averting shubha for some anafs (as discussed below), Qudr reasons that the information provides some legal basis for the erroneous view of permissibility just as the contract does. Qudr, Tajrd, 11:5900. Jurists unanimously hold that such contracts are defective, either because the subject of the contract is illegal or the contracting parties are legally ineligible to conclude a marriage contract with one another. But they debate whether the contract is per se void (bil) or merely voidable (fsid). As we see here, this debate has implications for the determination whether shubha exists and thus whether imposition of the add punishment is warranted.
84 83

Ibn Nujaym, Ashbh, 1:128 (noting Ab anfas rule of add aversion by shubhat al-aqd even when the contracting parties know of the illegality of marrying a closely-related relative (maram) and there is no mistake as to their identities). 290

with a slavewoman held as security and to other areas at the intersection of commercial law and family law.85 C. Shubha as Subjectivity Mainstream anafism defined shubha on a scale that moved from reasonableness (mistake-of-law, if textually supported, and mistake-of-fact, after minimum due diligence) to strict adherence to clear udd norms (rejecting contractual shubha that violated clear norms). In all categories, this meant an implicit mens rea requirement, as jurists placed knowledge and intent front and center, alongside the values that these laws were supposed to vindicate. The lack of either created a add-averting shubhaprovided the mistake was reasonable and the violation unknowing. The subjectivity of anaf shubha as mistake therefore accompanied somewhat objective measures. In anaf law, this mixed approach prevailed over Ab anfas proposal to disregard subjective elements and further limit add liability through the law of contract.
III. Accommodation and Legal Pluralism: Mlik and Shfi Shubha

The centralization and elaboration of the udd maxim within Mlik and Shfi law followed a very similar trajectory to the anaf arc. The differences arose in what shubha came to mean in each school over time. But rather than tracing this process jurist-by-jurist over time (as above in the anaf context), the following discussion will offer a brief summary of developments in the Mlik and Shfi schools. It will concentrate on significant contributions of major jurists within each school toward the construction of school-specific concepts of shubha.
85 For discussion, see Chapter 3, II.B.2 (Primacy of Contracts). 291

The centralization and gradual development of the udd maxim in Mlik law began in the early period in Andalusia with Ibn al-Qsim, Ibn abb and his colleagues, as discussed in Chapter 3. Their expansive doubt jurisprudence was picked up by the Cordoban jurist Ibn Abd al-Barr (d. 463/1071) and subsequent Mlik jurists elsewhere, who detailed instances of shubha that mimicked anaf scenarios but gave the Mlik rulings.86 As we will see, Shihb al-Dn Qarf (d. 684/1285) is the first Mlik known to pen a major work of legal maxims and further elaborate the categories of Mlik shubha. Similar process of centralizing and elaborating upon the udd maxim in the Shfi context began sometime later than in Mlik law, with expositions of shubha in 5th/11th century Iraq. Shfi jurists begin to expound on the doctrine of shubha in earnest through Ab l-asan al-Mward (d. 450/1058) and Ab mid al-Ghazl (d. 505/1111). Mward analyzes what he takes to be the adth giving expression to the maxim and details instances wherein it applies both in his law treatise (often with reference to the early cases presented in Chapter 2) and his work on legal-political theory.87 Ghazl is the first to delineate three categories of shubha recognized by
86 See, e.g., Ibn Abd al-Barr, Kf, 2:1069-73 (listing instances of shubha involving zin), 1075-78 (same, for defamation (qadhf)), 1079-87 (same, for theftlisting mostly model cases of evidentiary shubha), 1088-89 (same, for wine-drinking). For leading Mliks of subsequent periods through the rise of their wellknown treatises on legal maxims beginning in the 7th/13th century, see Bj, Muntaq, 9:168-71, 175-76, 232, esp. 9:175 (explaining Mlik and Sanns holdings of add aversion with respect to early cases presented in adth sources with reference to the udd maxim: wa duria anh al-add bi-dhlik (noting a rule of add avoidance for the mistaken belief that a man may make it legal for another man to have sex with his slavewoman just by giving verbal permission), innahu yudra anh al-add (noting that the mistaken belief in the legality of having sex with a son or daughters slavewoman also warrants add avoidance), and passim); Ibn Rushd al-Jadd, Bayn, 16:324 (detailing a scenario of udd avoidance from the early period and citing the maxim as a prophetic adth); Ab Bakr Ibn al-Arab (d. 543/1148), Akm al-Qurn, 2:604 (folding in the absence of shubha into the meaning of theft), 632 (discussing differences of opinion on what constitutes add-averting shubha for zin accusations: ikhtilfuhum fm huwa shubha tudra [bi-h] add al-zin); Ibn Rushd al-afd, Bidyat al-mujtahid, 2:297 (citing the standard formula); see also ibid., 2:324 (citing the udd maxim as a prophetic adth and instances of its application); Qarf (d. 684/1285), Dhakhra, 12:50-51, 60 (applying the udd maxim as a adth to several cases).
87

See Mward, w, 1:205, 207-15; idem, al-Akm al-sulniyya, 250. 292

Shfi law, as discussed below.88 Subsequent Shfi scholars build on their notions and provide details to further refine the shubha categories up to and following the rise of the Shfi legal maxims literature in the 7th/13th century.89 As we will see, Ibn Abd alSalm (d. 660/1262)colleague and rival to Qarf who was developing maxims in the Mlik contextwas the first Shfi to author an enduring work of select legal maxims designed to include only the most important principles of Islamic law according to Shfi thought; in it, the udd maxim figures prominently. Remarkably, in both strands of developments, Mliks and Shfis added an additional category of shubha to the existing categories known from the anaf school and from earlier periods. This new category may be called interpretive shubha to refer to the type of doubts and ambiguities that arise from juristic differences within and across legal schools. The idea that interpretive differences could give rise to addaverting doubt was new. It seems to have rested on the different social and historical contexts in which these schools developed as distinct from those of the anaf school. A. Developing Mlik and Shfi Shubha Mliks90 and Shfis91 divide shubha into three substantive categories. Two align loosely with the mainstream anaf categories of mistake-of-law and mistake-of 88 Ghazl, Was, 6:443-46 (quoting the standard formula: idra l-udd bil-shubaht and detailing three categories of shubha under Shfi law as shubha f l-maall, shubha f l-fil, and shubha f arq al-iba); see also idem, Wajz, 2:167. For Shfi discussions of the udd maxim and shubha amongst leading jurists during the period leading up to the rise of legal maxims literature, see Shrz (d. 476/1083), Muhadhdhab, 5:385; al-Qaffl alShsh, ilyat al-ulam, 8:7-15; Rfi, Azz, 11:144-50 (citing the udd maxim as a prophetic adth, e.g., on p. 145); Nawaw, Minhj, 3:206; idem, Majm, 18:375, 385; idem, Rawa, 7:306-13. The principal Mlik compilers of legal maxims do not break down the categories of shubha, concerned as they are with differences between legal principles as applied on a case-by-case basis rather than the overarching definitions of the maxims and their scope. See, e.g., Maqqar (d. 758/1357), Qawid; Wanshars (d. 915/1508), Udda. As a result, there is less terminological diversity in Mlik categories than in anaf and Shfi contexts. One of the few (and earliest) to define the categories in the Mlik context is Qarf (d. 684/1285) in his Furq; he does so with specific reference to the laws of zin, though 293
90 89

fact. A third category is new: interpretive shubha that arises from juristic differences over questions of legality. (Altogether rejected is Ab anfas category of contractual shubha.) Before moving to this third, more complex category, we review the Mlik and Shfi differences in the categories they share with anafs. 1. Mistake of law is an excuse for the layperson Mliks and Shfis follow some aspects of anaf conceptions of mistake-of-law but add additional provisions for ignorance. Recall the two cases of (a) a father taking money from his son, and (b) sexual relations with a slave without full ownership. As in the anaf context, these jurists find add-averting shubha in these cases to prevent punishment for theft or zin. For the first case, the same adth mentioned in the anaf context provides textual support here for the beliefalthough mistakenthat such takings are legal. For the second case, the same precedential rule permitting master-slave relations also provides textual support for the mistaken belief that partial owners are entitled to exercise the same license.92 So far, both rules align to a common conception of mistake-of-law, where there is a reasonable textual basis for the mistake.

he means to include crimes other than zin in these categories: shubha f-al-mawa as mistake-of-law, shubha f l-wi as mistake-of-fact, and shubha f l-arq as interpretive ambiguity. See Qarf, Furq, 4:1307-09 (al-farq bayn qidat m huwa shubha tudra bih l-udd wal-kaffrt wa-qidat m laysa kadhlik). The categories go by different names but fall into the same four categories as in the Mlik case. Suy identifies the following three substantive types of shubha: mistake-of-law (shubha f l-fil); mistake-offact [shubhat al-maall]; juristic difference (shubha f l-arq or shubhat al-khilf)). Suy (d. 911/1505), Ashbh, 237 (not labeling shubhat al-maall). For other labels, see qawid works such as, Ibn Abd al-Salm (d. 660/1262), Qawid, 2:279-80 (in the chapter Qida f l-shubaht al-dria lil-udd: shubha f l-fil, shubha f l-mawa, and shubha f l-sabab al-mub lil-wa; and fiqh works such as Ghazl (d. 505/1111), Was, 6:443-44 (shubha f l-fil, shubha f l-maall; shubha f arq al-iba); Rfi (d. 623/1226), Azz, 11:14547 (shubha f l-jiha wal-arq for juristic difference); Nawaw (d. 676/1277), Rawa, 7:306-12 (shubha f l-jiha for juristic difference). For Mlik positions, see, e.g., Ibn Rushd al-afd, Bidyat al-mujtahid, 2:261-62 (noting Mliks position that the add punishment for theft applies to anyone who steals from a relative, except fathers taking from sons, in line with unanimous opinion of the jurists); Qarf, Furq, 4:1309; cf. Ibn Rushd al-afd, Bidyat al-mujtahid, 2:633-34 (extending this rule to cover instances of a father having intimate relations 294
92 91

What if a legal agent is simply ignorant of the law? Mliks and Shfis hold that ignorance may also create instances of shubha, albeit by different justifications. For Mliks, ignorance twice-justifies add-aversion in these cases. The most prominent Egyptian Mlik jurist of the 7th/13th, Shihb al-Dn al-Qarf (d. 684/1285), who authored his schools central work of legal maxims, explains why. First, the agent lacks the criminal intent to violate the law, and second, he or she lacks awareness that the law potentially or actually prohibits the acts.93 Qarf further elucidates structural reasons to explain why mistake and ignorance of the law create a add-averting shubha: simply put, the law can be too complex to expect that a layperson can or will be aware of all its details.94 This observation, which recognizes unique challenges of legal interpretation in a system of legal pluralism, will be taken up in the section discussing interpretive shubha. This position [that the law is too complex to expect that a layperson can or will be aware of its contours] is a striking exposure of the chimerical nature of the common legal fiction imputing popular knowledge of the law to laypeople. Broadly, the fiction is a necessary pillar of the rule-of-law principle of legality, which requires that no act may be punished without first giving notice of the law.95 Specifically with respect to criminal law, the fiction provides the strongest rule-of-law justifications for penal

with his sons slavewoman, also as agreed upon by jurists). For Shfi positions, see, e.g., Ibn Abd alSalm, Qawid, 2:280 (in passing); Suy, Ashbh, 237.
93

Thus mistake of law is compound ignorance (jahl murakkab), Qarf explains in Furq, 4:1307, which means being ignorant about a matter (here: legality) and unaware of ones own ignorance (here: the fact of violating the law). See Muammad Ri Muaffar, Maniq, ed. Muaf usayn Dasht (Tehran: Muassasa-i Farhang-i rya, 1381/[2002-]). Qarf, Furq, 4:1309. For further discussion, see Chapter 6. 295

94 95

sanctions. As discussed in the review of death-is-different jurisprudence,96 Muslim jurists acknowledged the particularly high stakes in criminal law, where udd sanctions mean a loss of life or other harsh consequences. They relied then heavily on the criminal law legality principle as a safeguard against oppressive or unfair sanctions, that is, to prevent harsh punishments against people who had no notice of what the law was. This concern reveals itself repeatedly in doubt jurisprudence in discussions of the udd maxim. Here, Qarfs explanation of the Mlik insistence on averting sanctions in cases of ignorance of the law is an attempt to vindicate this principle, taken at face value and to its logical conclusion. Arguably, Qarfs concern stems from more than just recognition of the heightened criminal law principle of legality and of the complexity that accompanies every sophisticated legal enterprise. It also stems from his attention to the particular difficulties presented by Islamic legal pluralism. The Mamlk state in which he worked as a judgewhich had official positions for each of the four main Sunn schools of lawmade him particularly attenuated to these realities. He was head of the Mlik legal school in a system dominated by the Shfi law. Competing alongside the other legal schools, he was often forced to consider and apply laws based on the legal school to which litigant adhered, which required determining what he or she knew or should have known.97 In sum, Mlik positions reveal a concern with a combination of objective elementswhat the law iswith subjective elementswhether the offender knows what the law iswhen considering the question of shubha. When there is a legal basis albeit erroneousfor mistake, but no reliance on that basis, there is no shubha and the
96 See Chapter 2, Section III.B.
97

Cf. Jackson, Islamic Law and the State, 178-81. 296

add punishment is due; only when there is reliance upon some legal basis or complete ignorance of the law itself do jurists avert the punishment by a finding of shubha.98 For Shfis, ignorance of the law affects the status of the law itself with respect to the offender. In cases of ignorance, master-slave sexual relations without full ownership, is neither legal nor illegal, as it is only illegal to violate the law knowingly. Ignorance removes the element of knowledge, and the act committed is no more than a mistake.99 Unsatisfied with this morally subjective view of the law, Qarfs contemporary and Shfi jurist Ibn Abd al-Salm adds a moral component to the analysis in his central work of legal maxims. Conceding that sexual relations in this case technically cannot be called illegal, he maintains that they can be considered harmful under a larger umbrella legal principle. His position reflected his overall philosophy that all of Islamic law could be reduced to a single overarching maxim that covers all acts: its purpose is to promote the best interests [of humans agents] and avoid harm.100 To be sure, the harm here is not that of outright zin, where illicit

98 Qarf, Furq, 4:1307 (shubha f l-mawa); cf. Ibn Rushd al-afd, Bidyat al-mujtahid, 2:262-33.
99

See, e.g., Makk, shiya, 2:137.

Ibn Abd al-Salm, Qawid, 1:6. Ibn Abd al-Salm sought to do this in his book of legal maxims. This was arguably the culmination of a long-standing attempt to reduce Islamic law to a set of principles that expresses the central spirit of the law. Usually this applied to universal maxims; the first to do so was Dabbs as told in the story by Suy, with which Ibn Abd al-Salm would have been well-familiar. Note that this follows other common definitions of the purposes of law, that is, in the interest of the common good or that of human beings (taqq mali al-ibd). For a discussion, see also Khaled Abou El Fadl, Speaking in Gods Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001), 32 (The Sharah is Gods Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand Gods Will. In this sense, the Sharah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharah (maqid al-Sharah). According to the jurists, the purpose of Sharah is to achieve the welfare of the people (taqq mali al-ibd), and the purpose of fiqh is to understand and implement the Sharah. The conceptual distinction between Sharah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.). 297

100

sexual acts are committed in clear violation of the law.101 Yet, he suggests that even where the law is unclear, and thus makes no provision for punishment as a matter of law, such acts are to be avoided because they serve no legitimate interest and come so close to zinminus the intent elementthat they are morally wrong.102 On balance, Shfis come close to Mlik positions on doubt, finding shubha in cases of ignorance of the law. Shfis take a theoretical stance that appears to make the legality of an act relative to the individual offenders knowledge of legality; but in practice, they approach the law as do the Mliks in cases of mistake or ignorance. Shubha arises in both cases, sufficient to avert any add punishments provided there is no knowing violation of clear laws. This too is a mixed view: objective in taking the law as the starting point, but subjective in considering the individual litigants knowledge of it. 2. Mistake of fact also can be an excuse regardless of intent The second type of shubha corresponds to the anaf mistake-of-fact category, covering situations where the law is clear but the facts confused. For the zin case of mistaken identity previously discussed, Mliks hold that add liability is removed because of the existence of a shubha by mistake-of-fact. 103 For them, unlike the qualified anaf position, the law gives jurists broad leeway for findings of shubha
101 Ibn Abd al-Salm, Qawid, 2:279 (harm as mafsada; outright zin as zin ma); see also Suy, Ashbh, 237. This moral gloss has little practical effect in the case of joint slave ownership and similar cases. For example, if someone takes property, claiming that the stolen item belongs to him (or mistakenly thinks that it does), or a couple without a legally validating relationship claims to have one (or mistakenly thinks they do), the claim or mistaken belief is enough to avert the punishment for theft or zin respectively. The implication is that a mere claim of lack of intent or mistaken belief suffices to create a shubha for a judge to avert the add punishment in these cases. See, e.g., Suy, Ashbh, 237.
103 102

Qarf, Furq, 4:3107 (shubha f l-wi). 298

whether a new wife comes to the home or a man mistakes the woman lying in his bed for his wife or slavewoman. Even though the law is known, the factual confusion removes the criminal intent to violate the law, creating a reasonable shubha. Here, they take the law at face value, without imposing additional requirements of diligence on the agentwhich increases the subjective component of the law, in that the agent can claim shubha without any objective means for verifying whether it was justified. For Shfis too, the general tendency is to be expansive in considering mistakeof-fact shubha. They hold that add liability is canceled punishment in both cases (of newlyweds and mistaken identity in the home), without imposing duties of diligence.104 The add punishment is averted, they maintain, because there has been no actual violation of the law. Ibn Abd al-Salm explains that couples in these cases engage in innocuous activity under color of shubha as confusion or mistake; the law will therefore not punish them where they lacked sinful intentthe moral equivalent of lacking mens rea to commit the crime.105 In other situations, some Shfis apply the mistake-of-fact category of shubha even more expansively to cover situations where there is no specific criminal intent even though there might be general intent. For example, Islamic law imposes penalties for homicide graded according to whether the act is intentional, accidental, or quasiintentional. Only when it is intentional may the victims family petition the courts for the death penaltyprovided there was equality of social-legal status between the
104 See, e.g., Shrz, Muhadhdhab, 5:380; Ghazl, Was, 6:444.
105

Ibn Abd al-Salm, al-Qawid al-kubr, 2:279. For identical reasons, the same legal consequences that would have flowed from the intimate relations under a valid marriage contract attach here too. Ibid., 2:279 (noting that paternity from any child born of the relations attaches to the man, the woman must go through a divorce waiting period (idda), and she is entitled to dowry (mahr)). 299

murderer and the victim. Alternatively, the victims family may request blood money calculated according to the deceaseds status, which is the same remedy available when there is no status equality and in non-intentional cases. Under these rules, a Muslim who kills another Muslim is subject to the death penalty, whereas a Muslim who kills a non-Muslim is not.106 Extending the rule of mistake-of-fact shubha here, some Shfi jurists hold that a person who commits murder is not subject to retaliation if he does not know that the victim was Muslim or free, that is, if he mistakenly believed the victims status to be subordinate to his own.107 For them, the mistake or ignorance about the victims identity suffices to avert the add, because it signals lack of specific intent even though the perpetrator knew that the act of homicide is criminal and thus had the general intent to violate the law. Other Shfis considered this rule a bizarre divergence from the general principles governing ignorance of the law. For them, whoever is ignorant of the illegality of an act that obligates a add or some other punishment, and commits the act, receives no add punishment; but if he knows of the illegality but is (simply) ignorant of the add or other punishment (due) he receives the add or other

106 This was the general baseline rule amongst most early Muslim jurists, from which early anafs diverged. See, e.g., Shaybn, thr, 218-19 (ascribing to the first three caliphs the position that killing non-Muslims, including the muhad, Narn, and Yahd, rendered a Muslim death eligible, and noting Ab anfas extension of the rule to the Mjs). The anafs were criticized for this rule until Zufar, the third most prominent of Ab anfas companions, reportedly retracted it. Dhahab, Siyar, 8:40-41 (entry for Zufar b. Hudhayl, reporting the story as related by Abd al-Ramn b. Mahd); Bayhaq, Sunan, 8:31, no. 15,700. For an English-rendering of the story, see Fierro, When Lawful Violence Meets Doubt, 222; see also chapter 1, note 37 and accompanying text.
107

Suy, Ashbh, 237 (citing Nawaw, Rawa) (equality of status as mukfaa). 300

punishment (due).108 In this case, if a Muslim murders someone mistakenly thinking that there is no equality of status, he is still eligible for the death penalty in retaliation, for he knew that it was impermissible to kill. His general intent is enough to invoke criminal liability.109 Ibn Abd al-Salm would agree, according to his overarching theory of the laws ends that work to avert harm construed as immoral deeds, even if such acts do not violate the technical letter of the law. Claimed ignorance here would not be reasonable; so the udd maxim would play a role. This discussion reveals diversity within schools; Mliks hold that there is a sense of compound ignorance of the lawwhere the law is neither known nor is the legal agent aware that there is a law governing that actbecause of the great difficulty of knowing Islamic laws detailed legal rules. Shfis recognized that there is ignorance in a more limited sense. Neither imposes the duty of absolute diligence to discover the law; they adopt an approach that supposes: (1) it is hard to know the law, and (2) there is no legal violation where the law is unclear. Accordingly, both expose the unpredictability of the law and the fiction of knowledge of itas a prelude to constructing a robust doctrine of legal pluralism. B. Interpretive Ambiguity and Legal Pluralism The third category of shubha, interpretive ambiguity, is the most complex category, tied as it is to the very methods and structure of the Islamic legal system. A central feature of this system is a unique type of legal pluralism, which regards as
108 E.g., Tj al-Dn al-Subk, al-Ashbh wal-nair, ed. dil Amad Abd al-Mawjd and Al Muammad Awa, 2nd ed. (Beirut: Dr al-Kutub al-Ilmiyya, 1991) 1:381, 882. Ibid., 1:382 (this is true even where evidence is subsequently produced; as in where a victim thought to be a slave had in fact been freed before she was murdered or the victim thought to be a non-Muslim was in fact Muslim or had converted, according to one opinion there is still no qi). 301
109

equally valid all sound legal opinions issued by qualified jurists and adopted by one of Islams multiple legal schools, even where they conflict. Thus, one jurist might regard the same act as legal that another regards as illegal. What if harsh legal consequences attach, as is likely in criminal law? Mlik and Shfi confront this problem by regarding certain interpretive differences as reasonable bases for claims of shubha and therefore aversion of the add-punishment. Before detailing how each conceives of interpretive shubha, it is worth reviewing issues of structure and methodology in Islamic law that are key to understanding their conceptions. Recall that, as professional Islamic law developed, jurists (and their political counterparts) settled on the notion that to the jurists belonged the legitimacy and ultimate authority to say what the law is based on their interpretation of foundational sources.110 Recall, too, that the two primary sources of law are Qurn and Sunna (prophetic practice for Sunns, prophetic and immic practice for Sha).111 But despite agreeing on the sources in general terms, as seen in Chapter 3, jurists disagreed sharply over how to interpret the Qurn and how to identify Sunna. They eventually agreed that individually transmitted reports (adth) provided authoritative indications of prophetic practice, so long as the adth met certain criteria of authenticity. The early disputes aside, the 4th/10th and 5th /11th centuries saw the convergence of Sunn theorists on traditionism to varying degrees. Traditionism reflected the view that

110 See Chapter 1, note 1, and accompanying text.

111

The four principal sources of law for Sunns include the Qurn, Sunna (prophetic practice), consensus, and analogical reasoning. See, e.g., Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. ed. (Cambridge: Islamic Texts Society, 1991), 16-116, 228-305; Bernard Weiss, The Search for Gods Law (Salt Lake City: University of Utah, 1992), 151-258. For the Sha, they are the Qurn, Sunna (normative prophetic and immic practice), consensus, and reason. See Modarressi, Introduction to Sh Law, 2. 302

adth embodied Sunna as a normative source of lawagain, provided particular conditions of authenticity were met. Arguably, Shfi had won.112 Interpretive enterprises in the Islamic legal context required deep familiarity with both the substance of the scriptural sources of law as well as methodologies for interpreting them. It is clear from the foregoing discussions that there was a considerable amount of diversity of thought dictating different legal conclusions. How would this be dealt with in the area of criminal law where certainty and clear statements were required? Enter the notion of interpretive shubhawhich was designed to accommodate if not resolve conflicting interpretations. 1. Legal Pluralism and Interpretive Ambiguity Islamic law notions of clarity and ambiguity outline a wide range of ambiguity to account both for the fluid nature of legal texts and the multiple schools of interpretation that help to define those texts. Typically, textual ambiguity covers situations where the law is silent as to the legality of particular acts or where there is a conflict of texts.113 A good example concerns sodomy, which was an especially thick

112 This has been described as Shfis triumph, though some scholars now question whether Shfi was in fact responsible for this theory. The committed traditionist orientation is best exemplified for the Sunns by the anbal school, which did not emerge until its founder, Amad b. anbal (d. 241/855), fifty years to a century after the other school founders. For an analysis of the move from adth as supporting bases for other legal methods to canonical sources for law, see Jonathan Brown, The Canonization of alBukhr and Muslim: The Formation and Function of the Sunn adth Canon (Leiden: Brill, 2007).
113 In general, a text is ambiguous when texts of general import engender uncertainty as to whether and how the law covers a new set of facts. Dmd, Qavid, 4:54 (ukm kull-yi chz mawrid-i tardd bshad). This may occur when the law is silent, the scope of an existing and possibly related ruling is insufficiently clear, or with actual conflicts of texts commanding two contradictory rulings. Ibid. (absence of requisite text (fiqdn-i na), unclear text (ijml-i na), conflict of texts (taru-i nu)). See also Ibn Abd al-Salm, al-Qawid al-kubr, at 2:279-80 (describing textual conflicts as the operative scope of the udd maxim: al-taru bayn adillat al-tarm wal-tall ); al-Murta al-Anr, Rasil (similarly defining shubha as: dawarn al-amr bayn al-wujb wal-tarm).

303

bone of contention between the anaf and Shfi schools.114 anafs argued that the Qurn specified a punishment for zin (fornication) but was silent on sodomy. Accordingly for them, by definition, sodomy could not be a add crime. But Shfis disagreed on the basis that the Qurn equated zin to any gravely immoral act and mandated punishment, or alternatively, that the word zin encompassed male-male sexual interactions as well as male-female sex offenses.115 Whereas Shfis saw clarity, anafs saw ambiguity, and their doubt was enough to take sodomy out of the realm of udd laws.116 In this debate, the jurists were focusing on the scope of identifiable, agreedupon Qurnic texts that clearly forbade zin, but were silent or needed construction to extend to acts of sodomy.117 The existence of ambiguity grew in the realm of adths, where jurists could rarely point to agreed-upon authoritative texts. Islamic law has a problem of sources: in the realm of adth, there was much disagreement about which texts are authoritative and normative bases for law; and even when texts were accepted, there was disagreement about how jurists ought to resolve conflicts between
114 For general legal treatments of male sodomy in Islam, see Arno Schmitt, Liw im Fiqh: Mnnliche Homosexualitt, Journal of Arabic and Islamic Studies 4 (2001-2002), 49-110 (defining the prohibition of liw as one against anal sex, not homosexuality or male sodomy); Khaled El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 1500-1800 (Chicago: University of Chicago Press, 2005), 118-28; Lange, Justice, Punishment, 199-214.
115 116

See Ghazl, Was, 440; Rfi, Azz, 139-41; Nawaw, Rawa, 309.

For detailed anaf responses to Shfi arguments in favor of counting male sodomy as a add crime, see Qudr, Tajrd, 11:5910-16. Worth noting is that, though anafs generally found that there was no add liability for male sodomy, they regarded public male sodomy as immoral and thus punishable at the discretion of the caliph. In addition, there was dispute even amongst anafs about the status of the crime; one strain followed Ab anfas two students Ab Ysuf and Shaybn and sided with Shfis in counting male sodomy as a add crime. See Ibn Nujaym, al-Bar al-riq, 5:17.

117

Sh law did not face the problem of ambiguous texts in its unequivocal prohibition of zin; it cited a body of adths, consensus, and rational argumentation (that if zin was forbidden and had a add punishment, male sodomy which was a graver moral offense, should be punished even more harshly). See, e.g., Mufd, Muqnia in YF, 23:31; al-Sharf al-Murta, Intir, in YF, 23:49-50; s, Nihya, 2:723-24. 304

them. Without a single authoritative corpus of adth or a single code of law, each school of law addressed such questions through elaborate rules of interpretation particular to their own hermeneutical principles that they thought remained most faithful to the constitutional texts. In this context, most Sunn jurists saw ambiguity in interpretive differences about the law between the legal schools.118 This category of interpretive ambiguity underscores the extent to which these jurists view Islamic law as a juristic construct that accommodates a generous notion of legal pluralism: any rule that is valid in one Sunn school is to be recognized as a valid legal rule.119 For them, Islamic law falls into two categoriesclearly established rules and debatable ones.120 Clearly established laws are rules so widespread that they can be presumed to be a matter of common knowledge in a given society or legal regime. Everyone in a Muslim society should know, for example, that the law prohibits sex outside of marriage. In the earliest moments of the Muslim community, it was possible for new converts to claim that they were unaware of this prohibition, as occurred in a case
118 This is a doctrine adopted by the Shfi and Mlik schools. Whereas for Mliks, the very fact of juristic disagreement, well-established in another school, is enough to give rise to a add-averting shubha, the Shfi recognition is qualified. For Shfis to recognize rules that go against their schools mainstream positions requires a firm legal basis that would meet muster according Shfi interpretive methods. That is, if a Shfi jurist examines the legal sources relied upon by other jurists for divergent opinions, he need only recognize them as valid if those conclusions rest on logic so convincing that they suggest themselves easily to an astute Shfi jurists mind. See Makk, shiya, 2:144 and Fawid albahiyya in Makk, shiya, 2:133-34 (quoting Ibn Surayj, Wadi [li-man al-shari]); Ibn Abd al-Salm, al-Qawid al-kubr, 2:279-80. Thus, Shfis flatly prohibit and prosecute consumption of an alcoholic beverage called nabdh, see, e.g., Ibn al-Naqb (d. 769/1367), Umdat al-slik, 466-67, even though anafs famously permit it, see, e.g., Marghnn, Hidya, in Ibn Ab al-Izz, Tanbh, 4:175. For further discussions of nabdh, see P. Heine, art. nabdh, EI2, 7:840, and sources cited therein. See Jackson, Islamic Law and the State, 142 (quoting the definition of legal pluralism advanced by thirteenth-century Egyptian jurist Shihb al-Dn al-Qarf, who lived during the Mamlk era, which gave official state recognition in the judicial-bureaucratic structure to multiple legal schools: the ability to countenance the plurality of equally authoritative legal interpretations).
120 119

E.g., Qarf, Furq, 4:1309. Qarf understood the first category to be presumed, not actual, knowledge, as indicated by its label, mashhr, meaning widespread or common. 305

during the time of the second caliph, Umar. The caliph ruled that a Yemeni man who committed a sex crime but claimed not to know that it was illegal was eligible for the add punishment if he knew that the act was prohibited. The implication is that the mans lack of awareness was plausible, as Yemen was on the margins of the community at a time when Islamic law was not widespread.121 Some jurists took Umars ruling as the basis for a mens rea requirement, which coincided with their understandings of the udd maxim.122 But more generally, jurists determined that Islamic laws clear prohibitions against zin very quickly became sufficiently widespread that they fell into the category of clearly established rules.123 Thus, a thirteenth century jurist ruled that a couple claiming confusion about the legality of sex before marriage when they planned to get married does not constitute the type of ambiguity that would avert a add; the prohibition against extra-marital sex had been clearly established.124 And in this area of clearly established rules, courts generally did not entertain claims of ambiguity. Debatable rules refers to the detailed technical rules that have been the subject of juristic debate and comprise most of Islamic law. Only astute jurists can
121 See Ibn Nujaym, al-Bar al-riq, 5:4 (adam ishtihr al-akm). The implication is that the ability to claim shubha by way of ignorance about zin prohibitions was limited to the first generations; Islamic prohibitions against zin very quickly became sufficiently widespread that they fell into the category of clearly established rules. See also Ibn Qudma, Mughn, 12:345. Cf. Paul R. Powers, Intent in Islamic Law (Leiden: Brill, 2006), 193-94.
122

Prominent anaf jurists, including Ibn Mzah, Ayn, and Ibn bidn, imposed a knowledge requirement for zin-liability based on Umars judgment, with Ibn bidn specifying that to impose a add would contravene the requirements of the udd maxim. But other prominent anafs rejected this view. For Ibn al-Humm, claims of ignorance were never appropriate in cases of sex offenses because all religions and communities had outlawed it. Ibn Nujaym took a strict-liability approach, holding that udd punishments applied whenever udd laws were violated, regardless of publication of the law or the offenders knowledge. For the various positions, see Ibn Nujaym, al-Bar al-riq, 5:4 and, on the margins, Ibn bidns Shar. See Ibn Qudma, Mughn, 12:345. Qarf, Furq, 4:1309. 306

123 124

discern these rules, one jurist explains, and even then, they often disagree.125 Muslim jurists have always acknowledged the probabilistic nature of their interpretive endeavor and tried to account for it in various ways.126 In criminal law, a central way of accounting for it was through elaboration of the udd maxim and its doctrine of shubha. Here, they imposed a high burden of clarity before allowing criminal liability; textual ambiguity to jurists means non-liability for the average person. In other words, if even jurists could reasonably disagree about the substance of the law, then ignorance is an excuse (for the layperson).127 An example is the interpretive difference concerning valid forms of marriage. The sources suggest that Islamic law initially allowed temporary marriages, which Sunn schools later deemed illegal. These are marriage contracts wherein a couple specifies a date upon which the union will dissolve automatically without divorce proceedings. Most jurists agree that the Prophet permitted this form of marriage during his lifetime, but disagree as to whether the practice was subsequently outlawed. Most Sunn jurists concluded it was, but there is evidence that temporary marriages continued well into the first century. The Meccan school of Ibn Abbs (d. 68/687) sanctioned it, as did the proto-Sha in Medina and Kfa.128 This evidence indicates that
125 Ibid. (fa-l yalamuh ill l-fuqah al-ful wa-taqquh asr al akthar al-ns fa-kna al-labs fh udhran).
126 127 128

This insight is the major contribution of Zysow, Economy of Certainty, 90-91, 459-462. Qarf, Furq, 4:1409 (emphasis mine).

This rule continues as a valid form of marriage in Sh law today, with the argument that a caliph cannot prohibit practices permitted by the Prophet or one of the Imms. There is evidence that the Sha often adopted laws of Ibn Abbs that diverged from regulations issued by Umar and applied by his son Abd Allh, who provides a main source for Sunn law. This adoption was not explicit, especially considering the ambiguous regard in which Sh biographers held Ibn Abbs. See Wilferd Madelung, Abd Allh Ibn Abbs and Shite Law, Proceedings of the Eighteenth Congress of the Union Europenne des Arabisants et Islamisants: Law, Christianity and Modernism in Islamic Society, 1996 (Leuven, Netherlands: Katholieke Universiteit Leuven, 1998), 15-16, 23-25. Madelungs suggestion that the Sha may have adopted readings from a pre-Uthmnic codex of Ibn Abbs to permit temporary marriage is not borne 307

any prohibition must have occurred through some means beyond the formal constitutional sources; and indeed, Umar is said to have prohibited the practice after the Prophets death. Nevertheless, most Sunn jurists came to a consensus by the mid2nd/8th century that temporary marriages were unlawful.129 The disputed status of this form of marriage can have stiff consequences in criminal law because sexual relations in an invalid marriage open parties up to criminal liability for zinwhere penalties range from flogging to death. Jurists invoked the udd maxim in such cases on the notion that interpretive ambiguity about the legal status of temporary marriages did not give fair notice to non-jurists who entered into such contracts. Jurists announced a general rule that allowed for many laws deemed valid in one school to be construed as creating the type of shubha that absolves from criminal liability someone accused of violating that law deemed invalid in another school. To do otherwise would be to impose criminal liability where the perpetrator did not have clear notice that his actions were proscribed, in an area where even the jurists could not agree on the clarity of the law.

out by Sh texts, which refer only to the Uthmnic reading so far as I can tell. The Sh treatment of muta may reflect a tendency to omit Ibn Abbs as the true source, as Madelung posits, ibid., 23-24. Alternatively, early Sh jurists may have read Ibn Abbss additions to be commentary rather than as variants, as was common, or it may be that they found no trouble interpreting the Qurn to support a continuing practice of the Prophet, the subsequent outlawing of which by non-Imms was easily rejected in their theory of law and legal authority.
129

Contemporary scholars often disregard the early opinions regarding interpretive shubha concerning temporary marriage, categorically prohibiting it without recognizing the disputed nature of the practice in the early community. This is reflected in the editors note in Qarfs Furq, 4:1307 (citing Ibn Rushd al-afd, Bidyat al-mujtahid), saying that the reports that the Prophet prohibited temporary marriage (muta) were transmitted by many routes and thus certain (mutawtir), but also that Mward, w, 11:449, said that temporary marriage is indisputably arm, and that this was the opinion of all jurists from the generations of the Companions, their Successors, and succeeding jurists. 308

2. Mlik Interpretive Shubha and The Fiction of Knowledge of the Law Contemplating the udd maxim, Qarf explains his Mlik conception of law as falling into two categoriesthe clearly established rules and the debatable ones,130 as detailed above.131 As mentioned, clearly established laws are defined as rules so widespread that they can be presumed to be a matter of common knowledge in a given society or legal regime. For example, a claim of ignorance in a Muslim society that zin is illegal would not be entertained as giving rise to an instance of shubha.132 Such claims generally are considered implausible because everyone knows (or should know) that sex requires a validating relationship first and otherwise is considered zin for which they will be add-liable.133 This and other such violations of clearly established udd
130 Qarf, Furq, 4:1309. NB: Distinguish between this discussion and that of the first Mlik type of shubha, where only the general contours of the law are well-known, but the law offers some reasonable bases for ignorance or mistake-of-law. Those laws are more akin to the ones at issue in Qarfs second category of law here, for which there is no easy translation. Complex, derived, or not-clearlyestablished would also be accurate descriptions; I settled on debatable, because he means to suggest that they are rules from unclear texts that bear different interpretations, resulting from and in reasonable juristic debates on meaning.
131 132

See above, note 120 and accompanying text.

The prohibition stems from the Qurn and prophetic reports, which advise that zin is a grave moral offense and establish sanctions for its commission where the crime is proved by four male witnesses or by confession. In one place, the Qurn advises Muslims not to even approach (acts that might lead to) zin, calling zin a grave offense and an evil way (Qurn, 17:32: wa-l taqrab l-zin innahu kna fishatan wa-sa sablan). In another, it states that Gods (true) servants who will be rewarded are those who, among other things, refrain from polytheism, taking life unjustly, and zinall of which are sins that will incur exaggerated punishments in the hereafter. Qurn, 25:68-69. In addition, a prophetic report related on the authority of early Kufan jurist Ibn Masd states that the biggest sin after polytheism and infanticide is zin. Jurists take these statements to be clear textual prohibitions against zin. See, e.g., Ibn Qudma, Mughn, 7:307. The first punishment that the Qurn set forth for zin was life imprisonment for the thayyib (married person) and adh, which is verbal admonishment or discretionary physical punishments, as interpreted by Ibn Qudma, Mughn, 7:307, for the bikr (non-married person or virgin). Qurn, 4:15-16. There is considerable dispute about the import of these verses and whether and how they were abrogated, which has given rise to an extensive literature about abrogation. Notably, after the early period, this dispute did not translate into shubha. Interpretive shubha involves ambiguities from the early or formative period recognized in the law during the professional period.
133 There are some exceptions, as when someone has recently converted or for Muslims born and raised elsewhere. But this too was a matter of debate, as shown by the anaf back-and-forth on the matter. anaf jurist Ibn Mzah [al-Bukhr] explicitly imposed a knowledge requirement for zin-liability based on the early judgment of Umar Ibn al-Khab that a Yemeni man who committed zin was only to receive the add punishment if he knew that the act was prohibited. Other prominent anaf jurists like

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laws then make offenders eligible for the associated punishments. For this set of laws, ignorance is never an excuse. The second category encompasses the debatable rules mentioned above. Such rules make up most of Islamic law, and Qarf maintains that most laypeople and even many jurists cannot derive those rules.134 As noted above, most Sunn jurists recognized that even the most heroic of efforts to discover the law did not yield certain conclusions; and agreement amongst jurists was rare. Their acknowledgment that rules were only probably correct and that divergent opinions were not necessarily incorrect had consequences for questions of criminal liability. The upshot in that realm, given the serious nature of the moral accusation and the harsh consequences involved in udd laws, was the development of substantive and procedural safeguards for determinations of guilt and sentencing. The most far-ranging and penetrating safeguard was this doctrine of shubha, which here manifests as a clear-statement rule. It is one thing to find shubha when laypeople try to interpret the law and get it wrong,

Ayn and Ibn bidn followed this opinion, the latter adding that to impose a add would also contravene the udd maxim. But other prominent anafs rejected this view. For Ibn al-Humm, claims of ignorance were never appropriate in these cases because all religions and (thus) all communities had outlawed it. Ibn Nujaym took a strict-liability approach, holding that udd punishments applied whenever udd laws were violated, regardless of publication of the law or the offenders knowledge. See Ibn Nujaym, Bar, 5:4, and on the margins, Ibn bidns Shar al-Bar al-Riq, 5:4. Ibn Amr al-ajj (d. 879/1474-5) resolved the conundrum in this way: as an early opinion, Umars judgment in the Yemeni case applied because of the lack of widespread knowledge of new Islamic laws just after Islams advent (adam ishtihr al-akm). See Ibn Nujaym, Bar, 5:4; Ibn bidn, Shar al-Bar al-Riq on the margins of Ibn Nujaym, Bar, 5:4). The implication is that the ability to claim shubha by way of ignorance about zin prohibitions was limited to the first generations; Islamic prohibitions against zin very quickly became sufficiently widespread that they fell into the category of clearly established rules. See also Ibn Qudma, Mughn, 12:345.
134

See above, note 134 (quoting Qarf, Furq, 4:1309 (fa-l yalamuh ill l-fuqah al-ful wa-taqquh asr al akthar al-ns fa-kna l-labs fh udhran)). 310

as in mistake-of-law. Should it not exist all the more so, Qarf argued, when even jurists found difficulty in interpreting the law?135 Following this logic, Mliks broadly recognize interpretive differences on issues relating to most criminal laws (murt al-khilf). Even zin becomes a second-category offense when interpretive differences obscure the scope of seemingly clear-cut zin prohibitions. The various legal schools differ over the precise definition and elements of zin, ranging from debates about the elements of the crime and jurisdiction to offender characteristics and culpability. Does it encompass male sodomy, bestiality, and necrophilia? Is there extraterritorial liability? Do zin laws apply to minors, the insane, and non-Muslims?136 Moreover, other schools permit forms of marriage that Mlik law does not. Temporary marriage constituted one form attested in early Islamic legal history, as noted above. Umar was said to have prohibited the practice after the Prophets death. Yet even for Sunns who saw Umars decisions as normative, the conflict between texts initially permitting temporary marriage, judgments prohibiting it, and records of its continuing practice and permissibility amongst respected jurists from the early period together creates a genuine juristic disagreement as to the permissibility of the practice. This is interpretive shubha for Mliks, absolving any temporarily-married person from liability under zin laws that otherwise do not deem temporary marriage as a legal

135 See Qarf, Furq, 4:1309.

136

Jurists agree only on the most basic definition. Zin is prohibited sexual relations between a man and a woman [who have] no validating legal relationship or semblance of such a relationship (shubhat al-aqd or shubhat al-milk). Ibn Qudma, Mughn, 12:340. Note that the absence of shubha is built into the definition itself; the same applies to theft, and implicitly to defamation and wine-consumption. 311

validating relationship in the Mlik or any other Sunn school of law.137 The same applies to other areas of interpretive shubha; under Mlik law, this type of difference generally translates into no add liability. 3. Shfi Interpretive Shubha: Reasonable Differences Only in the Dominant Legal Regime Shfis also recognize the principles of interpretive shubha but place tight restrictions on its operative scope.138 They recognize the forms of marriage deemed permissible in the earliest period of law before the emergence and crystallization of law schools. Hence, they saw interpretive shubha in zin accusations against people married temporarily (as permitted in the Meccan school),139 without witnesses (as permitted by the Medinan school of Mlik), or without a guardian for the wife (as permitted by the Kufan school of Ab anfa).140 Though Shfis reject these sorts of marriage, that
137 Qarf, Furq, 4:1307 (calling this type of difference shubha f l-arq generally and ikhtilf al-ulam f ibat al-mawa specifically).
138

Suy, Ashbh, 237 defines this type (shubha f l-arq or shubhat al-khilf) as rules that are licit according to some jurists but illicit according to others (yakn allan inda qawm arman inda kharn).

The Shfi recognition of this rule as constitutive of add-averting shubha is not from recognition of Sh law, which continues to validate the practice. One Shfi jurist, Makk, explains that temporary marriage was an ordinarily prohibited act that was made licit right at Islams inception, but only as a dispensation by necessity, again, comparing it to eating carrion to survive. According to Shfis, the practice was forbidden in the year of the Battle of Khaybar, then permitted in the year of the Meccan Conquest, then said to have been prohibited forever in the year of the Prophets Farewell Pilgrimage, just before he died. Contrary to that narrative, Ibn Abbs, followed in the Meccan (and Sh) school permitted itindicating his view that the Prophet had not in fact forbidden the practice permanently; so no add liability applied to anyone who practiced it. Yet contrary even to this narrative, the adth scholar Bayhaq reported that Ibn Abbs had reversed himself on that opinion, saying that there was add liability for those who contracted temporary marriages regardless of whether they knew it to be forbidden, just asunder Shfi lawanafs were add-liable for drinking nabdh regardless of whether they knew it to be forbidden. Makk, shiya, 2:144. Mliks permitted marriages without witnesses, and anafs regarded marriage without a guardian (wal) as valid (in that a guardian is a condition rather than an essential element of a valid marriage contract). These are common examples typically discussed in the legal maxims and fiqh literature as giving rise to accepted instances of interpretive shubha. That is, jurists of other schools applied the udd maxim whenever these types of marriages arose, even when they deemed them invalid in their own school. E.g., Qarf, Furq, 4:1307; Makk, shiya, 2:144. An early opinion of the hir school, advanced by its founder Dwd b. Khalaf, deemed as valid marriages with neither a guardian nor witnesses. For some scholars, his permissive opinion created another basis for shubha for other jurists, 312
140

139

other early schools permitted them meant that early scholarswhose views created precedentmust have allowed them. Accordingly, Shfis would apply the principle of interpretive shubha in these cases to avert the add for zin.141 But Shfi willingness to recognize other schools opinions beyond those established during this early period was limited. For them, mere juristic disagreement, even if well-established in another school, is not enough to give rise to a add-averting shubha. Rather, recognition of rules that go against the mainstream Shfi positions requires a firm legal basis that would meet muster according to Shfi interpretive methods. That is, if a Shfi jurist examines the legal sources relied upon by other jurists for divergent opinions, recognition is due only to conclusions that rest on logic so strong that they suggest themselves easily to an astute jurists mind. Shfi jurist Makk cautions that it is far from easy to evaluate the strength of a divergent opinion (that, by definition, was not the mainstream Shfi jurists immediate conclusion in the first instance). An alternative opinion might reveal itself with the slightest reflection or it could require considerable thought. Nevertheless, only well thought-out

but the Shfi jurist Tj al-Dn al-Subk noted that other scholars, such as Ibn ajar al-Haytam in his Tufa, took the opposite view because of the overwhelming disagreement with Dwd and his methods. (see Makk, shiya, 2:144) (citing Ibn ajar al-Haytam, Tufat al-mutj). More common are examples of disputed forms of marriage of marriage without a guardian or without witnesses, which are typically discussed as accepted instances of interpretive shubha.
141

Suy, Ashbh, 237. Likewise, they will not impose udd punishments for apostasy for a person who has neither water nor sand available to him to make dry ablution (fqid al-ahrayn) as a necessary prerequisite for prayer who abandons the five prescribed daily prayers intentionally; for the validity of his decision is disputed amongst jurists; likewise, they will not impose the add sanction against someone who touches a person of the opposite sex then prays purposefully (which Shfis maintain nullifies the ablution, and consequently, the validity of the prayer) or who makes ablution without the intention to do so (as Shfis require), because these acts are permitted in other schools on sound (or at least plausible) legal-interpretive bases. Ibid. (citing Qaffl, Fatw). 313

differences on the basis of strong legal arguments create the kind of add-averting shubha at issue here. 142 Going even further, some jurists apply even more restrictive criteria before making findings of interpretive shubha. One Shfi judge, Ibn Shuray, recognized only those divergent conclusions adopted out of dire necessity. He illustrates the point with the most extreme example of life-and-death straits: a person may resort to eating carrionordinarily prohibitedin order to survive. If a jurist comes to a similar unavoidable judgment of law where the actual legality of an act is unknown and the circumstances dire, Shfis will recognize interpretive shubha.143 On this extremely narrow interpretation, not many cases of interpretive shubha are add-averting. Consider the drinking of nabdh, the beer-like beverage that anafs infamously permitted. One would expect a schools recognition of interpretive shubha to provide cause for avoiding add punishments against anaf nabdh-drinkers caught by non-anaf authorities. Indeed, the Mliks do just that. To be sure, Mliks and other Sunns prohibit the drink based on the implications of prophetic saying and on analogyboth less than absolutely clear and certain bases for the prohibition. That is, they point to the adth stating that any intoxicating substance in large quantity is prohibited in small quantity and analogize the intoxicating qualities of nabdh to those of wine, which the Qurn clearly prohibits.144 For Mliks, that this position is well 142 Suy, Ashbh, 238 (shar al-shubha an takn qawiyyan); Makk, shiya, 2:133-34 (qawiyyan dalluh); ibid., 2:241-42 (commenting on the strength of the evidence (madrak) required).
143

Makk, shiya, 2:133-34 (citing Fawid al-bahiyya; quoting Ibn Surayj, Wadi).

144 See, e.g., Ibn al-Naqb, Umda, 466-67 (defining the prohibition against drinking to cover any substance that would intoxicate if consumed in large quantity, based on the adth stating that a drink that intoxicates in large quantity is prohibited in small quantity: m askara kathruh fa-qalluh arm. For the rules prohibiting it in other schools, see, e.g., Ab l-Qsim al-Khiraq, Mukhtaar (Damascus: al-Maktab alIslm lil-iba wal-Nashr, 1964), 196 (anbal); Ibn Ab Zayd al-Qayrawn, Risla (Rabat: Wizrat al-

314

established in the anaf school suffices to make it an instance of interpretive shubha. But for Shfis, the clarity of the law in the foundational texts leave anafs with no reasonable basis for legalizing nabdh. Accordingly, Shfis reject this case as a legitimate difference of interpretation and rule that the add punishment applies to anafs who drink nabdh even if they do so believing that it is lawful in their own legal school. Shfis also part ways with anafs on certain issues of homicide. Ordinarily as noted above, if a Muslim were to kill a non-Muslim, the laws of retaliation (qi) would not apply because retaliation laws required equality of status, which Muslim jurists believed were lacking in such cases.145 Uniquely, anafs permitted the surviving family members of non-Muslim murder victims to pursue retaliation against Muslim perpetrators without sanction (for which they were ridiculed).146 Shfis rejected this anaf such that udd avoidance would not apply regardless of the supposed basis for the rule; that is, if a non-Muslim took revenge against a Muslim who had killed one of his family members, Shfi held that the non-Muslim became eligible for the penalty of death, even if he retaliated with the anaf rule in mind. In sum, after acknowledging early precedential rules from other schools of law, Shfis restrict interpretive shubha to actual ambiguities of legal texts based on their
Awqf wal-Shun al-Islmiyya, 1415/1995), 160 (Mlik). Sh law prohibits it too, based on the adth rather than qiys, as they reject extending rules on the basis of analogy. See, e.g., Ibn Idrs al-ill (d. 598/1201-2), Sarir, 3:474; Ibn Bbawayh, Hidya, 20 (not citing the adth explicitly); Mufd, Muqnia, in YF, 23:40. They further prohibit a non-intoxicating drink, fuqq, also based on a adth and its harmful health effects; and they hold that anafs who drink nabdh are add-eligible. See Mufd, Muqnia, in YF, 23:41; s, Nihya, 2:731; al-Allma al-ill, Qawid, in YF, 23:418.
145 146

See above, note 106, and accompanying text.

See Chapter 1, note 37 and accompanying text (discussing the case of Zufar that reveals that, under anaf law, if a Muslim kills a non-Muslim, and the surviving family members of the non-Muslim victim retaliate by killing the Muslim perpetrator, there can be no prosecution against the retaliation because the survivors had some legal basis in anaf law to justify their actions). 315

own interpretive methodology.147 By interpreting interpretive shubha so narrowly then, in essence, Shfis recognize only the first two types of shubha broadly: mistakeof-law and mistake-of-fact. udd liability is removed only when an offender mistakes the law defined by Shfi jurisprudence plus a few exceptional cases folded into the mix by the authority of early precedents. The limitation to Shfi rules helps restrict potentially unwieldy claims of shubha by reference to interpretations of other schools; it helps jurists of this school interpret the law more determinately and with more precision. C. Shubha as Interpretive Difference Shfi parallels to the anaf rebuff of interpretive shubha are perhaps telling. As the dominant legal system for centuries under Abbsid rule in its several manifestations, anafism had an interest in expounding the law as clearly as possible according to an internal jurisprudential logic that had no need for officially recognizing minority schools. Shfiism developed as a minority schoolthat is, one without official state patronage. Minority status may explain their initial recognition of interpretive shubha in principle: it was a petition for self-recognition and an argument for their own relevance. Shfis further developed their jurisprudence of legal maxims under the Mamlks, but did so now as a part of a structurally diverse system in which
147 Ibn Abd al-Salm describes interpretive shubha as referring to instances of conflicts in legal texts, as where one text indicates that a certain act is permissible and another that it is impermissible, without any indication of preference (tarajju). By way of example, he points again to the case of a jointly owned slavewoman, where was a conflict between precedents conferring rights to sexual enjoyment of slavewomen (conceived as property) with texts prohibiting sexual relations without full ownership. Ibn Abd al-Salm, Qawid, 2:279-80 (al-taru bayn adillat al-tarm wal-tall ). This is perhaps not the best example, as no legal ambiguity arises except in the mind of the layperson; jurists are agreed that the law prohibits sexual relations with only partial slave-ownership. His example places his conception squarely in the realm of the second type of shubha, mistake-of-law in the mind of the layperson, rather than the type of shubha that arises in the mind of the jurist based on some textual legal basis. 316

representatives of each school were officially recognized by the political authorities with the establishment of four chief judgeshipsone chief judgeship for each school.148 According to Sherman Jackson, Shfis were dominant in early Mamlk Egypt. In that position, they would have had an early anaf-like interest in clarifying the law and would similarly have been under no obligation to defer to the other schools. This may explain why Shfis of the period revealed a certain hesitance to defer to positions of other schools through the category of interpretive shubha. Their earlier, more accommodating theories of legal maxims and of doubt did not allow them to eradicate interpretive shubha, but with a new orientation, they could severely restrict it. Notably, the Shfi stance was quite different from the more accommodating one of the Mlikswho never dominated in Mamlk Egypt and who always faced a certain amount of legal (and theological) diversity farther West in Andalusia and North Africa.
IV. Fault Lines: Strict Liability & Moral Values

Ambiguity did not always produce the benefit of udd aversion. Jurists of some schools argued in favor of strict liability for certain crimes, where the values at stake were so fundamental, they argued, that the udd maxim could not apply. In such cases, they advocated punishment regardless of mistake or lack of notice.

148 For classicthough briefexpositions treating the four chief judgeships in the secondary literature, see J.H. Escovitz, The Establishment of Four Chief Judgeships in the Mamlk Empire, Journal of the American Oriental Society 102 (1982): 529-31; J.S. Nielsen, Sultan al-hir Baybars and the Appointment of Four Chief Qs, 663/1265, Studia Islamica 60 (1984): 167-76. For a more in-depth treatment commenting on the politics surrounding the institution, see Sherman Jackson, The Primacy of Domestic Politics: Ibn Bint al-Aazz and the Establishment of the Four Chief Judgeships in Mamlk Egypt, Journal of the American Oriental Society 115 (1995): 52-65 (arguing that the new Mamlk suln, Baybars, was obliged to create the four chief judgeships after the Shfi judge he installed to garner legitimacy threatened to alienate the other legal schools with his overwhelming assertion of Shfiism that led to his own schools dominance in early Mamlk Egypt). Cf. Yosef Rapoport, Legal Diversity in the Age of Taqld: The Four Chief qs under the Mamlks, Islamic Law and Society 10, 2 (2003): 210-28 (questioning Jacksons analysis). 317

A. Consensus Cases of Strict Liability Jurists agreed that the udd maxim would not apply to proved instances of rape. No amount of claimed ignorance of the law could avert udd liability from the perpetrator because of the gravity and the immorality of the crime and its violation of the private interests of the victim.149 The flip was also true: the udd maxim always applied to the rape victim, as the lack of voluntariness was conceived as a add-averting shubha akin to the lack of mens rea.150 During the reign of the second caliph, recall that Umar averted the add sanction from a woman accused of zin who claimed to have been sleeping and awoke to find a man atop her. He determined the case to be one of rape, which lifted criminal culpability from the woman and imposed it strictly on the man.151 In this way, all jurists drew a red line around rape of a woman as a crime of strict liability. The prohibition against it was a well-established rule that all legal agents were presumed aware of and charged with respecting. Jurists rejected any room for applying the udd maxim in these cases. They held those who failed to recognize and adhere to these norms strictly liable.

149 Jurists uniformly avoided imposing the add sanction on rape victims, on the basis of the adth in which the Prophet reportedly said that members of his community were not liable for matters arising from coercion. See Ibn Qudma, Mughn, 3:347; see also ibid., 347-48 (citing the adth: My community is not liable for [consequences arising from] mistake, forgetfulness, or coercion.); Bihbahn, Rasil, 354 (citing the adth: My community is not liable in nine situations [among them], mistake, forgetfulness, coercion, ignorance, and incapacity); Anr, Rasil, 154 (same). Ibn Qudma, Mughn, 12:347. Cf. Azam, Sexual Violence in Mlik Legal Ideology (discussing rape in early Islamic and medieval Mlik law).
151 150

See Chapter 2, Appendix, Case no. 14. 318

B. Against Contracting Ambiguity Most jurists also imposed a rule of strict liability on couples who are forbidden to marry (like siblings) but do so anyway.152 The founder of the anaf school, Ab anfa, attempted to counter that rule by proposing another type of ambiguity: contractual ambiguity. He held that legal permissions ordinarily flowing from a valid contract create a add-averting shubha when a contract is materially defective. He applied this rule even where contracting parties enter into a contract knowing of the material defect. Whereas other jurists saw such marriage contracts as void, Ab anfa saw them as voidable; for him, they create at least the semblance of a contract.153 C. Moral Values as Limits on udd Avoidance The effect of the broad rule of anaf contractual shubha was to counsel udd avoidance in all contracts cases, however knowingly defective.154 This effort to privilege the law of contract over all other values ultimately failed. Most jurists, even subsequent anafs of Ab anfas own school, rejected his arguments.155 For them,
152 Many dispense with a mens rea requirement here, indicating the moral value they place on this rule. Ibn Qudma, Mughn, 12:341 (citing late-second- to mid-third-century jurists Ab Ysuf, Muammad [alShaybn], Isq [b. Rhawayh], and others). For these jurists, the sensitive nature of such relationships and the moral derogation of crossing such lines warrant a strict-liability approach.
153

Ordinarily, the Islamic law of contract provides some protection for defective commercial transactions pursued on the mistaken belief that they were done under color of a contract, that is, where there is a semblance of a valid contract. Ab anfa extended this norm to marriage law in his position that the semblance of a marriage contract should provide protection as well, in this case, exculpating parties from accusations of zin. Ibn Nujaym, Ashbh, 1:128. For further discussion, see above, note 84 and accompanying text.

Further examples where Ab anfa bars punishment even though Islamic law clearly prohibits acts include the following: sexual relations with a slavewoman held as security (see al-Fatw al-Ttrkhniyya, 5:108-16; Ibn bidn, Radd al-mutr, 12: 61-84; Q Khn, Fatw, 3: 480-489); and contracts for the sale of wine (see Ibn Nujaym, al-Bar al-riq, 5:16). For further discussion, see Chapter 3, note 146, and accompanying text. Only a minority of later anafs followed Ab anfas views of shubhat al-aqd, often implicitly. Examples include Qudr (implicitly), Tajrd, 11:5901-07 and Ksn, Badi al-ani, 9:4150 (explicitly defining the types of shubha according to categories of contract as: aqqat al-milk versus shubhat al-milk, aqq al-milk or aqqat al-nik versus shubhat al-nik, and shubhat al-ishtibh f mawi al-ishtibh f l-milk 319
155

154

adjudication on the mere basis of the sanctity of private agreements had to fit within rather than override Islamic laws overarching fundamental values. Jurists found the value Ab anfa placed on private property insufficiently compelling to trump competing family values. Likewise, they found moral imperatives against sexual violence and toward preserving an elaborate structure of Islamic sexual ethics to outweigh any interest in avoiding udd punishments. The rationales justifying udd avoidance and counseling against it in these cases clashed directly. And for most jurists, certain substantive moral values disallowed udd avoidancesetting clear limits on the doctrine and practice.
V. Conclusion

The concepts discussed here were laid out succinctly in the legal maxims literature that blossomed most pronouncedly from the 7th/13th through 10th/16th centuries. There, as in law manuals, the udd maxim often begins the section on criminal law. The early precedential adth reports outlining instances of udd avoidance as well as subsequent legal developments in each school were absorbed into the legal maxims collections as model cases meant to illustrate the maxim and provide normative guidance for future cases. In this professional period, this signaled a move not only from traditions to law, but from common-law style case-by-case reasoning to principle-based expositions of law. Importantly, the content of this new exposition of law was neither uniform nor absolute. Jurists differed significantly, even within legal schools, about what constituted shubha, what justified it, and where principles of udd
wal-nik). Subsequent anafs, beginning with Ab anfas two most prominent students, Ab Ysuf and Shaybn, objected. See Ibn Nujaym, Ashbh, 1:128 (noting their disagreement with Ab anfas rule of add aversion by shubhat al-aqd where there is knowledge of the illegality of marrying and no mistake as to identity). 320

avoidance did not apply. These differences and their differing conclusions illustrated the realities of ongoing debates between jurists as well as the competing moral values that they were attempting to balance. In a similar vein, Islamic legal maxims and the literature from the end of this period collecting them reflect both settled statements of Islamic law and key moral values within it. The detailed definitions of the udd maxim presented through model cases revealed juristic diversity and dissent; and the inclusion of the maxim but with limitations on it revealed the moral commitments of proponents of this maxim. The next two chapters assess the commitments of other jurists who approached this and other maxims with caution and sometimes outright rejection.

321

CHAPTER 5 The udd Maxim Questioned: Opponents and Reluctant Adherents

I.

Introduction Chapters 1 and 2 showed competing attitudes toward udd imposition and

udd avoidance amongst early jurists, whereas Chapters 3 and 4 showed how the majority of jurists mediated the competition. anaf, Mlik, and Shfi (and as covered in the final chapter, Sh) jurists developed the nascent doubt jurisprudence reflected in early traditions to form a robust theory of shubha, covering substantive, procedural, and interpretive ground. Their strongly textualist counterparts, anbal and hir jurists, are said to have opposed the udd maxim and its doctrine of udd avoidance. Ibn anbal did not view the udd maxim favorably, seemingly rejecting it as based on an inauthentic adth.1 And Dwd al-hir and his followers rejected it for similar reasons.2 If strong textualism required adth-based arguments and they rejected the udd maxim on those grounds, the question becomes: how did they deal with the competing attitudes? How did they relate to or define and limit the scope of doubt jurisprudence? And what became of legal maxims like the udd maxim in their approaches to law? This chapter examines the approaches of anbal and hir jurists to criminal law and the inevitable presence of doubt therein. I will demonstrate that traditionisttextualism had gradations that manifested in a wide diversity of opinions with respect to the udd maxim. Their alleged opposition to the udd maxim and udd avoidance
1 See Ibn anbal, Musnad, 5:416. For a discussion, see Chapter 1, Section V.B.
2

See Chapter 1, Section V.B., and discussion below. 322

was by no means absolute. Some accepted the maxim outright. And where others placed limits on any principle of udd avoidance, they identified textual tools that provided mechanisms for flexibility in the law. These aids allowed them to remain true to textualist and epistemic ideals without succumbing to the rationalist methodologies underlying the expansion of doubt jurisprudence amongst the other schools. In terms of epistemic authority, detractors and reluctant adherents to the udd maxim arguably aimed to maintain the ideal of judicial subservience to divine law. I argue that they did so based on an early theological view of Gods rights, from which they derived their understanding of juristic discretion and authority (as alluded to in Chapter 2). This understanding of legal authority in turn drove their interpretive framework and pushed substantive maxims like the udd maxim to the sidelines.
II. anbal Shubha

A. Ibn anbal: Faithful Agent of Mixed Traditions Ibn anbal had good reason to reject the udd maxim. He did not regard it as an authentic adth, nor did he agree with practices of udd avoidance on the basis of status hierarchies. These were cleverly called instances of shubha by jurists who accepted the udd maxim, but could just as easily be regarded as merely a stratagem to avoid the udd punishment.3 It was precisely for this reason, it seems, that Ibn
3 Stratagem (la) was Ibn al-Qayyims label, but that did not necessarily mean that he saw it to be illegitimate stratagem. Quite to the contrary. See the collection of Ibn al-Qayyims fiqh writings in Jmi alfiqh, 6:480-81 (describing one such permissible stratagem to avoid udd punishment if arrested by confessing once to the add crime such that witness-testimony would inadmissible; the witnesstestimony and the confession in that scenario would not be entertained simultaneously, and the confession would be preferred; a refusal to affirm the confession more than once would create a deficiency in the evidence that could not be trumped by the testimony; in such cases, it would become the imms prerogative to either impose the add punishments despite having less than the requisite multiple confessions). For Ibn al-Qayyim, this is a permissible stratagem: la jiza, by analogy to the Case of Miz, when the Prophet said, if only you had left him alone; he could have repented and God would have accepted it. If he had fled from the add to tawba, that would have been preferred. For 323

anbal accepted only the modified version of the overlook tradition, that is, the one with the udd exception (advising against holding those of high status responsible for indiscretions, unless they involved violations of udd laws). No blanket order to overlook their udd infractions would have been acceptable to him, for udd enforcement was mandatorya requirement legislated by God specifically without regard to status. Accordingly, in matters of social relations and where the faults were not serious, a lenient and forgiving stance was conceivable, but for criminal law, it was not. Serious crimes and moral offenses that invoked udd liability required punishment for those of high status like anyone else. Later anbal jurists elaborated this view, commenting on Ibn anbals version of the prophetic overlook saying: overlook the faults of those of high station in matters other than udd.4 The famous 5th/11th century anbal scholar, Ibn Aql (d. 513/1119),5 had read those of high station6 to refer to those who typically obeyed the law and were known for their probity, but sometimes made mistakes when faced with exceptionally difficult circumstances.7 But his famous intellectual descendant Ibn alQayyim (d. 751/1350) said that this interpretation was not so obvious. Neither the Qurn nor the Prophet ever referred to pious, law-abiding people as those of high station.8 Rather, the ordinary meaning of the term is understood to be people of high
further discussions of acceptable add-averting iyal, including the case of Al cited in Chapter 1, see ibid., 6:479, and discussion below.
4

Ibn al-Qayyim, Jmi, 6:414 (citing the adth with the udd exception: aql dhaw l-hayat athartihim ill l-udd).

On Ibn Aqls life, times, and jurisprudential and theological thought, see George Makdisi, Ibn qil et la rsurgence de lIslm au XIe sicle (Ve sicle de lHgire) (Damascus: n.p., 1963). Ibn al-Qayyim, Jmi, 6:414 (dhaw l-hayat). Ibid. (aqdmuhum bi-wara). Ibid. (dhaw l-hayat). 324

6 7 8

social status in terms of their honor, nobility, or leadership standing.9 These are people that God singled out with a type of honor and preference.10 If one of them was known to be of high moral character, but made a misstep, the idea behind the adth is that we should not hasten to punish him or her for that occasional misstepso long as it was minor. Rather [we are to] overlook his fault so long as it is not a add crime, for God specifies that [udd laws] are to be enforced against those of high status just as it applies to those of low status.11 Ibn al-Qayyim then combined the overlook saying with the Prophets comments about egalitarian punishment to underscore the point. Namely, he highlights the Prophets comment made at the conclusion of the Case of the Makhzm Thief, that even if [my own daughter] Fima bt. Muammad stole, I would cut off her hand, and in another version, The Children of Israel came to ruin in that they used to let the nobles who stole go free, but imposed add sanctions on those of low station.12 This, Ibn al-Qayyim concluded, is a significant matter from the standpoint of the ideals of this complete Law and its policies , [which were] established for the best interests of the people in this life and the next.13 All of this would seem to indicate that Ibn anbal and his followers radically rejected the udd maxim in all its forms for deep existential reasons: it not an authentic adth and it seemed to have been abused to benefit those of high status. Yet it did not turn out to be the case that anbals rejected the maxim outright. Instead, they qualifiedly accepted it at some turns and marginalized it at others, in part based
9 Ibid. (dhaw l-aqdr bayn al-ns min al-jh wal-sharaf wal-sudad).
10 11 12 13

Ibid. (takrm wa-tafl). Ibid. (high status: sharf; low status: wa). Ibid. (low station: af). Ibid., 6:415-16 (ideals: masin). 325

on the rather ambivalent view that Ibn anbal had of it and in part because of the necessity of dealing with doubt for which the maxim was handy. Recall that Ibn anbal accepted a tradition related to the udd maxim in language reminiscent of it, that the Prophet avoided the add sanction in at least one case of rape.14 In his jurisprudence, he noted other instances where there was no udd liability, based on other such earlier precedents from adths that he had authenticated (but which did not, incidentally, invoke the udd maxim).15 This combination of requiring strict imposition of udd punishments in some instances but favorability to udd avoidance in others was but a faithful reflection of traditions that went in both directionstoward udd imposition and avoidance. Ibn anbal did not then try to mediate the competition between the divergent traditions through the udd maxim or otherwise. Rather, he aimed to adhere faithfully to the dictates of what he took to be authentic texts. The result was that the competition remained both as to the rulings of udd imposition versus udd aversion and the udd maxim itself. * * *

Amongst subsequent anbals, various scholars fell on each side of the equation. Some applied the udd maximalbeit not always attributing it to the Prophetand, on its basis, disagreed with Ibn anbals rulings of udd imposition in ambiguous cases. For example, Ibn anbals student Isq b. Ibrhm (d. 275/888) disagreed with his teachers view that drinking intoxicating beverages warranted add punishment even if one did not get drunk. He perceived some degree of doubt as to whether the add punishment was due for drinking intoxicants or for intoxication. To be sure, Isq
14 See Ibn anbal, Musnad, 5:416.
15

Ibid. 326

like Ibn anbalthought that drinking any intoxicant was illegal, based on a prophetic adth that even small amounts of drinks that are intoxicating in abundance are arm.16 But he held that the add punishment did not apply because of the principle requiring that udd penalties be averted by shubha.17 The famous Iraqi jurist Ab l-Qsim al-Khiraq (d. 334/945)who authored the main legal handbook relied upon in the anbal schooldid not mention the maxim. His writing on criminal law instead listed instances of mandatory udd imposition and instances where there was no udd liability. In the old traditionist style, both positions were based on adth rulings in specific historical scenarios.18 This was in contrast to Isqs invocation of the maxim and its centrality to the contemporary Mlik, anaf, and Shfi udd jurisprudencethe eponyms of which all accepted and cited the maxim and whose students pursued increased application of it.19 What we see with the anbal criminal law positions reflects the same mixture as the traditions themselves, taken at face value. The constituent parts of anbal criminal law and their own version of doubt jurisprudenceat least so far as the rulings and the orientation to the udd maxim wentwere to become ever more assorted, in different ways, over time. At times, the positions were at odds, like oil and water: each side subscribed either to the udd maxim with its add-averting shubha or to a strict
16 See Isq b. Ibrhm, Masil al-Imm Amad b. anbal, 2:265.
17 18

Ibid.

See, e.g., Khiraq, Mukhtaar, 193-94 (on theft: listing instances where the add sanction for theft does not apply, including theft of dates or fruit, prohibited items, childrens property on the part of parents, a masters property on the part of a slave). This being an abridged handbook of law, he does not cite the adth-bases for these exceptions, but they are well known in the adth literature from the collections a century beforeincluding Ibn anbals Musnad, with which he was familiar and presumably upon which he relied. See discussion above in Chapter 4. 327

19

rule of udd imposition with exceptional cases of non-add liability. At other times, the two went together, like an emulsion of shubha and add-avoidance held together by the udd maxim. B. The udd Maxim in Accord with anbal Traditionism: Limited udd Avoidance By the post-formative or professional period in the 5th/11th century, the udd maxim had become common parlance of udd laws in every other schoolSunn and Sh alike. By this time, jurists regarded it as a prophetic adth and made it central in their law books penned in all the major centers of the Islamic world in lands as farflung as Central Asia and Andalusia. Around this time, somethough by all means not allanbal jurists begin to regard the udd maxim as a adth and apply its principle of add-aversion by way of shubha. Perhaps they were merely mimicking the place of the maxim in the other schools by then where it had become central and well-settled. But perhaps there was more to it than that, as the inclusion of the udd maxim into anbal works was not an unedited lifting nor was it uniform. For instance, leading anbals of this period, Ibn al-Bann (d. 478/1078-9) and Maf b. Amad al-Kalwadhn (d. 510/1116), accepted the udd maxim as a adth, while their slightly older but much more prominent contemporary, Q Ab Yal (d. 458/1066), did not. To begin with the latter, Ab Yal mentions udd avoidance only when defending the anbal views in contexts that were more polemical than normative for his own school, in the process of (at least implicitly) arguing against the divergent rulings of other law schools.20 In his own handbook of anbal rules, al-Jam
20 Nimrod Hurvitz, Competing Texts: The Relationship Between al-Mawardis and Abu Yalas al-Ahkam alsultaniyya (Cambridge, Mass.: Harvard Law School Islamic Legal Studies Program, 2007). 328

al-aghr, he made mention of neither the maxim nor shubha.21 But not so in his Akm al-sulniyya, a tract on political theory that mirrored (or responded to) a work of the same title written by his famous Shfi contemporary Mward. Some scholars have posited that Ab Yal had taken and modified the Akm from Mward, a contemporary who fully adopted and expanded on the udd maxim at length in his works.22 According on one view, Mward wrote his text in response to the caliphs request for a tract that would help restore the Abbsid caliphs authority by clearly outlining the areas of caliphal jurisdiction as against the Byid regional rulers, who had reduced the caliph to a figurehead and enjoyed effective control over the state.23 But as

21 Q Ab Yal, Jmi, 307ff. Here, he mostly presents the instances of add liability and non-liability in terms of mandatoriness, most of which Ab Bakr al-Khalll (d. 311/923) and Khiraq (d. 334/945) had already outlinedboth based on well-known adth and opinions attributed to Ibn anbal. For example, Ab Yal says that there is no add liability for a man who sleeps in his house with a woman whom he thinks is his wife, for theft of dates, etc. (p. 308: l yuadd), nor for retraction of a confession (p. 264: saqaa anh al-add). But there is add liability for witnesses who give false testimony as to zin (p. 265: wajaba l-add). Ab Yal largely follows his forebears structure and rules and notes areas of their disagreements, representing the two major strands of thought internal to the anbal school; he also adds a few other cases of add liability vs. non-liability (e.g., stealing a muaf) also based on earlier precedents and adth. Interestingly then, he reflects what seems to be a running theme in anbalism: places where Ibn anbal himself indicated divergent positions on questions of add liability, e.g., whether the add is due or not on a man who has sex with a slavewoman who is his foster sister if he knows it is illegal (p. 309, noting that Ibn anbal indicated both sides: wa-qad awmaa Amad il lwajhayn). The absence of shubha here is in contrast to his discussions in a separate work, al-Akm alsulniyya, where he does include both shubha and the udd maximthough aiming to confine discussions of them to anbal doctrine. For the view that Ab Yal copied Mwards tract and anbalized it, see Muammad Abd al-Qdir Ab Fris, al-Q Ab Yal al-Farr wa-kitbuh al-Akm al-sulniyya (Beirut: Muassasat al-Risla, 1983), esp. 499-523 (listing differences between the two and noting that Mward penned the original text). Donald Little, A New Look at al-Akm al-sulniyya, The Muslim World 64 (January 1974), 1-15. Hurvitz, Competing Texts. For Mwards use of the udd maxim in his Akm and elaboration of the principle in his w, see Chapter 5. See H.A.R. Gibb, Some Considerations on the Sunn Theory of the Caliphate, in Studies on the Civilization of Islam, ed. Stanford J. Shaw and William R. Polk (Boston: Beacon Press, 1962), 141-50; ibid., al-Mwards Theory of the Caliphate, in Studies on the Civilization of Islam, ed. Stanford J. Shaw and William R. Polk (Boston: Beacon Press, 1962), 151-65. Gibb introduced Mwards scholarship to an English speaking audience in the 1960s. For a comprehensive review, some years later, of the political context surrounding Mward and ideas about how it motivated the writing of this work, see Henri 329
23 22

Nimrod Hurvitz has argued, Ab Yal and Mward were up to something else.24 Mwards work devotes only a single chapter to the caliphs interest, and it otherwise strengthens the positions of the Byid establishment.25 The two authors were less concerned with challenging the establishment than with setting guidelines ensuring community cohesion and rule of law in a radically changed political landscape of decentralized rule.26 No longer able to appeal to earlier notions of centralized caliphal authority, they discussed the caliph on the margins (where he resided) of a wider discussion emphasizing the duties of several other officials in multiple jurisdictions in diverse regions. In their treatments, serving the public interest (malaa) became the new overarching standard to bind the community.27 Hurvitz also argued that Ab Yal and Mward were both establishment men, well-connected judges who had access to courtiers and caliphs and were therefore part of the ruling elite to which their texts were explicitly addressed and had the effect of supporting.28 In that sense, he posits that [t]he Akm is a document that was composed by members of the establishment for members of the establishment about the roles of the establishment.29 Hurvitz is agnostic on which Akm was the original,30
Laoust, La Pense et laction politiques dal-Mward (364-450/974-1058), Revue des tudes Islamiques 36 (1968): 11-92 [repr. Paris: P. Geuthner, 1968]. Hurvitz, Competing Texts, 5, 28 (questioning full-sale copying, noting that some sections draw on similar sources so appear similar while others are quite different, and arguing that the two works of Akm represented longstanding tensions between juristic traditions of Mward and Ab Yal, in which each excludes the legal school of the other in his analysis).
25 26 27 28 29 30 24

Ibid., 38-39. Ibid. Ibid., 41-42. Ibid., 42 (citing the introduction to Mwards Akm). Ibid., 41. Ibid., 42. 330

though in his text he seems to favor the idea that Ab Yal copied Mwards more lengthy text.31 Likely, the two authors shared circles and thus motives to such an extent that one of them felt comfortable enough to copy large parts from the others text.32 Establishing dating and sequence is not important to the argument here (though a review of the discussions of criminal law and the udd maxim makes it appear that Ab Yal copied from and condensed Mwards text).33 The more interesting question is to ask why there are differences. Hurvitz suggests that the culprit is a long-standing dispute between pro-theology, rational-minded Shfis like Mward34 and anti-theology traditionist anbals like Ab Yal as to the political leadership of the community.35 He concludes that the two sides agreed on the fundamentals of Islamic public law and its methodology36 and that both cited historical norms of political and administrative practices of governance as authoritative legal doctrine of Islamic public law. That is, both consider[ed] the ruling elites policies as an important and legitimate source of legal doctrine.37 This, for Hurvitz, reflected an interesting partnership between rulers and scholars, wherein rulers made policies that formed a sort of raw material from which the jurist-scholar

31 See ibid., 25
32 33

Ibid., 42.

Given the near-verbatim language, modified to fit anbal doctrine in which the udd maxim as such was largely foreign to that school during this period, it is unlikely that resemblances between the two works are explained by the fact that the two were part of the same legal community and may have reported on long-standing debates based on particular scriptural and legal arguments.
34 35 36 37

They are called mutakallimn in Ab Yals Akm. See ibid., 43. Ibid. Ibid. Ibid. 331

extracted the rules for public law by flexibly choosing policies and elevating them to normativity to fit their own historical circumstances.38 This explanation is not entirely satisfactory. It seems to ignore key differences between the two scholars approaches. Though both adopt an accommodationist stance toward the establishment, at the end of the day, the two do not agree on methodology and their discussions were quite different: Ab Yal was a traditionist thoroughly concerned with finding the right answer based on doctrines internal to the anbal school (to which he limits his arguments). He is attentive to issues of textual authenticity and builds on the foundation of Ibn anbals appeal to particular historical examples of public policies: those of the Prophet and the early community. Accordingly, Ab Yal does not cite historical anecdotes beyond the first few generations as authoritative, as Hurvitz himself was aware.39 And he carefully avoids attributing to the Prophet reports that he and his anbal forebears do not conclude are authentic. Case in point: the udd maxim. In his discussion of the public jurisdiction over criminal law, he notes permissions for udd-avoidance in limited situationsas had Ibn anbal, Khalll, Khiraq and other anbals in their rulings identifying certain instances of non-add-liability based on scenarios presented in the adth literature (the same ones he mentioned in this legal handbook, al-Jmi, and described in Chapter 2). In this context, Ab Yal was arguing against Mward; he was against what had
38 Ibid., 45-48.
39

In the chapter on malim (extraordinary jurisdiction to address grievances, presided over by the caliph), he notes that Mward includes nine historical accounts that refer to caliphs, while Ab Yal includes none. Ibid., 25. He does not, however, give Ab Yals omissions of Mwards historical anecdotes much weight, commenting that both integrate historical and contemporary political practice into the legal narrative of Islamic public law to support his broader conclusions. Ibid., 47. 332

become by then the widespread idea that the udd maxim was Prophetic. To be sure, he mentioned add-averting shubha, but he decidedly avoided calling it prophetic and was at pains to limit its scope to the correct situations as related by the anbal school. Thus, for instance, he writes that if a man claims plausible shubha as an excuse for committing zin, such as defective contract, genuine confusion as to the identity of his wife, or ignorance that zin is illegal in the first place, being a recent convert, then the add sanction is to be avoided.40 This is a verbatim reproduction of the language of the other Akmminus Mwards citation of the udd maxim as a prophetic adth to bolster and explain the argument, wherein the latter notes that the Prophet said: avoid udd in cases of doubts or ambiguities.41 Ab Yals section on udd is replete with such direct references to shubha and oblique references to the udd maxim, always affirming the anbal rule. Likely having copied the work from Mwardgiven that he did not otherwise recognize the udd maxim in his other worksAb Yal was sure to delete the prophetic attributions appended to the maxim and to modify the rule to fit his schools doctrinewithout reference to Mward or any other jurists.42 In this way, we see that Ab Yal only draws on anecdotes from the earliest generations (salaf) as authoritative and he hedges a bit when including
40 Ab Yal, Akm, 265 (wa-idh dda f l-zin shubhatan mutamalatan min nik fsid aw ishtabahat alayh bi-zawjatih aw jahila tarm al-zin wa-huwa adth al-Islam, duria bi-h shubha [sic = anh, as in Mwards Akm, 254] al-add).
41

For the udd maxim as a prophetic adth in Mwards work, see his Akm, 254 (wa-idh dda f l-zin shubhatan mutamalatan min nik fsid aw ishtabahat alayh bi-zawjatih aw jahila tarm al-zin wa-hum [sic = huwa, as in Ab Yals Akm, 265] adth al-Islam, duria bi-h anh al-add; qla l-Nab all llhu alayh wasallam: idra l-udd bil-shubaht).

42

See, e.g., Ab Yal, Akm, 263 (defining zin as sex in the absence of a validating relationship or the semblance (shubha) of one), 265 (noting that anbal ruleagainst that of Ab anfathat if a man has sex with a maram, even if they are married, he is add-eligible because such fatally defective contracts cannot overcome the textual prohibition such that it creates a add-averting shubha (l yakn al-aqd maa tarmih [al-nik] bil-na shubhatan f dar al-add)), 266 (noting that intercession in a criminal trial is barred and cannot facilitate absolution from udd-liability (isq al-add)). 333

principles emanating from their practices, like the udd maxim, that have a weak verbal-textual pedigree but have been recognized by the anbal forebears as rooted, nonetheless, in textual precedent of practice. In essence, Ab Yals approach echoes Ibn anbals move of rejecting the udd maxim as a adth, but accepting the practice in limited situations backed by authoritative adth texts giving rulings as to add liability on a case-by-case basis.43 To return to the original point: what was the argument about and how did the substance of the debate reflect or dictate Ab Yal view of legal maxims? Hurvitz provides interesting insights when he says that both authors were writing for the establishment to benefit the establishment. But if so, their accommodation of the establishment was not absolute. Still, they grappled with competing traditions from the period they agreed carried the greatest weight of authoritysome favoring add imposition, others add avoidance, and in practice, some privileging the elite, others insisting on egalitarianism. Like his predecessors, Ab Yal aimed to sort out the traditions with a sort of textual originalism as a means to limit human discretion and submit to Gods exclusive prerogative to legislate. So, in some ways, he can be said to have been concerned with accommodating the establishment elite, but on the basis that he was articulating and navigating through the thicket of conflicting traditions that might confuse or give rise to rationalist forms of resolutionas anbals accused other schoolsthat smacked of arbitrariness and judicial lawmaking.

43 By contrast, Mward cites political anecdotes from other periods, is rationally minded (believes in qiys), accepts the opinions of the other Sunn schoolsthough not the anbal schoolas valid if not correct, and so argues with respect to the three major traditions (as Hurvitz points out); he views it as acceptable to appeal to doctrines far beyond the text. See Hurvitz, Competing Texts. 334

The argument between Mward and Ab Yal then was not between Shfis and anbals over political leadership. They agreed that those in powereven if they achieved it by forcewere owed near total obedience, and both writings accommodated the ruling elite in that dynamic. Rather, the dispute was over religiomoral and legal authority as represented in legal methodology. Mward was willing to accommodate scholars of his ilk, who subscribed to a theological outlook on law that drafted jurists as its interpreters. They were to begin with the text but could fill gaps in the law through analogical reasoning and categorization of rules like udd aversion and udd imposition to arrive at a theory of shubha that allowed them to address new situations on the basis of the udd maxim. That he shared this outlook with members of the anaf and Mlik schools explains the comparative nature of his jurisprudence and his broad articulation of the udd maxim as a rational principle beyond its prophetic attribution. That Ibn anbal rejected any sort of theology or delegation to anyone but God for expression of law in the words of the text, explains why Mward largely excluded Ibn anbal from discussion of the juristic community in his Akm. The reverse is true for Ab Yal. His rejection of these pro-theological, extratraditionist scholars was his way of holding true to his traditionist methodological commitments. That he restricted the law to textual rules of particular cases covered by the Prophet and the earliest community rather than broad-based ideas of shubha explains why he omitted references to any but anbal jurists and why he limited citations of his historical anecdotes to that community. Each side displayed some degree of fidelity to theological and legal orientations, demonstrating that theirs was less a fight about political leadership than a dispute over particular rulings. This is the

335

methodological explanation. There was the accommodationist one as well, which Hurvitz well outlined. * * *

Not much later, Ab Yals successors followed broadly in his footsteps, though with a key difference: they had come to regard the udd maxim as a adth. Perhaps they were overcome by the consensus amongst scholars of other schools as to its prophetic origins. They retained fidelity to anbal principles by relying on traditions to define shubha rather than any broad definition that risked introducing human discretion into the legal equation. Ibn al-Bann (d. 471/1078-9) mentioned the maxim to dispute Shfis divergence from Khiraqs rule that add liability for zin requires four confessions or the testimony of four eye-witnesses. Shfis position, that add liability was due after only a single confession, was erroneous in Ibn al-Banns view because it diverged from both the texts of the traditions giving rulings on udd laws and from the udd maxim, which he took to be another authentic tradition favoring udd avoidance.44 Thus, he cited several individual rulings that suggest udd aversion or mitigation whenever the heightened requirements for proving zin were not met.45 Taken together, he said, the multiple instances of add aversion, together with the prophets direction to avoid udd sanctions in cases of doubt46 support Khiraqs position because they show a tendency against add liability.47 The same
44 See Shfi, Umm (1961), 6:133. Ibn al-Bann (d. 471/1078-9), Muqni, 3:1120 (noting that the Qurn requires four witnesses, that insane people and minors cannot be add-eligible, that an ill person convicted of a crime warranting a penalty lesser than death can request delayed punishment, thatcontrary to Ab anfas ruleretracted confessions can remove add liability, etc.).
46 47 45

Ibid. 3:1120 (idra l-udd bil-shubaht). Ibid., 3:1120-21 (taghlban li-isq [al-udd]). 336

appliedeven more soto situations where a convict retracts the confession during sentencing, as the Prophet had indicated in the Case of Miz: if only you had let him go (taking his attempted escape to be a retracted confession).48 The Baghdd scholar and head of the anaf school during his lifetime, Ab lKhab al-Kalwadhn (d. 510/1116), invoked the maxim too in the course of defending a conservative anbal position on ritual purity in a long tract that illustrates his interpretive philosophy: a combination of traditionism and preempting ambiguity by choosing the safer path.49 The question was whether merely touching a woman invalidates a mans ablution (wu), requiring him to redo it, or whether the ritually impure act that breaks it is actually having sex. The uncertainty is part linguistic, part methodologicalrevolving around how to interpret the word touch in a Qurnic rule instructing men, if they touch women and do not find water [to purify themselves in preparation for prayer], [to] perform dry ablution [with clean dust].50 For anbals, the word touching means just what it saystouching with the hand, especially with desire, and it obligates redoing the ablution. Other juristsmainly anafstake the term to be a figure of speech51 for sex and read the verse to require an ablution redo only when a man and a woman have sex.52
48 Ibn al-Bann, Muqni, 3:1121 (arguing that canceling add liability for the entire sentence before it has been carried out is a more significant form of mitigation than cancelling a part of the sentence left after it has been started, and concluding then that the latter should be even more acceptable than the former).
49

Kalwadhn (d. 510/1116), Intir, 1:313-25. On the safer path doctrine in Christian moral theology that led parties presiding over criminal trials in medieval Europe to err on the side of finding nonliability, see Whitman, Reasonable Doubt, 116-17, 180, 189-202. For further discussion in the Sh context, see Chapter 6, note 182 and accompanying text. Qurn, 4:43, 5:6 (aw lmastum al-nisa fa-lam tajid man fa-tayammam). Kalwadhn, Intir, 1:313 (kinya).

50 51 52

Ibid. (attributing the opinion that lustful touching breaks wu to mainstream anbals and Mlik, noting that Ab anfa and others hold that mere touchingwhether lustful or notdoes not break 337

Both sides advanced a host of arguments to support their interpretations. Kalwadhns arguments are purely textualist. The literal meaning of touch mentioned in the verse is touching with the hand, as attested in multiple ways. The Qurn itself used the word in another verse: if they had touched it [revelation sent on paper] with their hands;53 the Prophet forbade sale through touchingthat is, an apparently pre-Islamic Arabian commercial practice of you touch it, you buy it, where touching was taken as acceptance of an unspoken offer and the sale completed without the buyer examining the item;54 early poets, who were cited as linguistic experts on word meaning, used the term touch with the hands;55 and Umar, an early authority who for anbals issued rulings that were not quite binding but extremely persuasive, reportedly mentioned kissing and touching56 as activities that precede sex.57 As both sides agreed on a common interpretive principle, a jurist could only depart from the literal meaning of a text if there was some explicit textual indicator requiring him to do so. Absent such a statement, as here, Kalwadhn argued, the general meaning of touching by the hand controls, so that is what invalidates ablution.58
wu, and citing the Shfi view that any touchingwhether lustful or notbreaks wu) (citing in footnote, inter alia, Sarakhs, Mabs; Ksn, Badi).
53

Qurn, 6:7 (law nazzaln alayka kitban f qirsin fa-lamashu bi-aydhim). His interlocutor does not seem to have argued that the fact that the Qurn specifies touching with the hands in one place indicates that this mode of touching is not included in the word touching itself. Instead, the interlocutor argues that the prima facie meaning (hir) of the form lams means touching with the hand, but that the prima facie meaning of the form lmastum means sex, and that the specification of with the hands, as in verse 6:7, is necessary to devolve the sense of the phrase here to a figurative meaning of simple touching with the hands. See Kalwadhn, Intir, 315 (anaf argument); cf. ibid., 316-17 (the anbal response: that when there are two possible meanings contained in a single word, the correct approach is to adopt them both). Ibid. Kalwadhn, Intir, 1:314 (citing poetry by Bashshr b. Burd, in Ama, Kitb al-Aghn). Ibid. (mulmasa). Ibid. Ibid. (giving the example of a speaker saying I mean touching through sex). 338

54 55 56 57 58

The dissenting interlocutor in Kalwadhns presentation began with the text as well, but then expands to rational arguments on its basis. He began with four textualist-originalist arguments (i.e., the Qurn as understood according to the people to whom it was revealed, not contemporary usage). First, the word touching from the verse in question appears in the transitive form,59 and this indicates mutual action, which is a textual indication that sex is meant. Second, 1st/7th century Arab linguistic usage is authoritative for Qurnic meaning because the Qurn was revealed to the Arabs of that period; and they used figurative speech like touching to refer to sex because of the impropriety (istiqb) of using a more specific and explicit term.60 Third, the verse in question uses figurative language several times, to the point that it becomes preponderant to the mind that touch too is used figuratively.61 And fourth is an argument about linguistic structure. The beginning of the verse requires simple ablution with water (wu) for minor impurities62 and full ablution for major impurities63 by taking a bath (ghusl), simply using the term purify (fa-ahhar). It then advises those who become impure while traveling, relieving themselves, or touching women and cannot find water to purify themselves. Here, the verse only mentions dry ablution (fa-tayammam) to substitute for the simple ablution using water. But structurally, one would expect that God would complete the structure of the
59 Ibid., 1:315 (lmastum).
60

Ibid. (alongside touching, also giving examples of words like entry and proximity to refer to sex: mubshara, dukhl, qurb, mulmasa). Ibid. (fa-yaghlib al ann kawn hdhihi l-kalima minh, giving these examples: the use of if you stand [for prayer]: idh qumtum [lil-alt], to mean preparation for prayer through making ablution after an impurity or sleeping, and the use of or if one of you comes from relieving oneself: aw ja aadukum min al-ghi, to refers to the place of doing so). Ibid. (adath, al-adath al-aghar). Ibid. (janba, al-adath al-akbar). 339

61

62 63

full sentence by substituting simple ablution for minor impurities and major ablution for full impurities. The interlocutor argued that God has in fact completed the analogy, without needing to mention it explicitly: touching womenwhich comes last in the listis the act that requires the major ablution, which we know is occasioned by sex, not simple touching with the hand.64 He added a few other arguments centered on prophetic practice65 and on analogical reasoning identifying the likely reason for the rule.66 In the end, the bottom line for Kalwadhns opponent was this: purification is only required when there is something that causes actual impurity, and this simply does not occur through two pure body parts touching one another.67 Here is where the crux of Kalwadhns textualism comes in, featuring the udd maxim. He rejected all of the above arguments based on two interrelated arguments. First, he said, it is true that several rules in other contexts would not suggest his position in this matter if he were to argue on the basis of analogy. Indeed, in the criminal law context, the two sides agree that if a man lays naked with a woman, but there is no proof that they had sex, the act is illegal, but there is no add liabilityin
64 Ibid. Cf. Qurn, 5:6 (Full text: y ayyuh lladhna man idh qumtum il l-alti fa-ghsil wujhakum waaydyakum il l-marfiqi wa-msa bi-rusikum wa-arjulakum il l-kabayn wa-in kuntum junuban fa-ahhar wa-in kuntum mar aw al safarin aw ja aadun minkum mina l-ghii aw lmastumu l-nisa fa-lam tajid man fa-tayammam adan ayyiban fa-msa bi-wujhikum wa-aydkum minhu; m yurdu llhu li-yajala alaykum min arajin wa-lkin yurdu li-yuahhirakum wa-li-yutimma nimatahu alaykum laallakum tashkurn).
65

Kalwadhn, Intir, 1:322 (citing the adth describing the Prophet as having kissed one of his wives and then having gone to pray without renewing his ablution (narrated by Urwa from isha about the Prophet): annahu qabbala ba nisih wa-kharaja fa-all wa-lam yatawaa).

Ibid., 1:320, 323, 324-25. He argues that the rule makes sense if touching comes with or stokes desire that triggers a sexual dischargewhich is an impurity that obligates ablution. But in fact, mere touching usually does not come with that kind of desire or those kinds of effects as the anbals are assuming; there is no certainty that even if it does, that it always does so such that the rule should always require ablution with touching regardless of accompanying effects; the rule is incoherent as the anbal rule on touching does not include touching menwhich could very well come with the effect they fear if there are homosexual sentiments or desires.
67

66

Ibid., 1:323 (aqqat al-ahra innam tajib an najsa wa-ltiq uwayn hirayn l yaduthn najsa). 340

application of the Prophets statement to avoid udd sanctions in cases of doubt.68 He added, explaining the import of the udd maxim, udd laws are based on a principle of avoidance and non-liability.69 Essentially, udd are different. Matters of ritual worship, like those governing impurity and ablution, are arational; we need not look for the operative cause because we do not base the law on presumptive reasons but on text. The verse says touching, not arousal or sex, so it means that the rule is indeed triggered with touching regardless of the other effects.70 Instead, and this is his second point, it is better to appeal to the principle of precaution71 in interpreting the law to avoid such difficulties and ambiguities altogetherwhether in matters of ritual worship or otherwise. Accordingly, in cases of doubt,72 we adopt the safer path.73 This generation of 5th/11th century anbal scholars was about defending Islamic law against the discretion-permitting theories of the other law schools. If they accepted the udd maxim as a adth, that did not translate into accepting what they regarded as the broad and unwieldy applications of the principle that they took as favored by the other schools. In law, anbalism was textualism whose self-image was one of faithful servitude to scripture and sunna. For legal maxims, that translated into either a rejection of the udd maxim as a adth, as Ab Yal and his forebears had done, or
68 Ibid., 1:319-20 (idra l-udd bil-shubaht).
69 70 71 72 73

Ibid. (fa-amm l-udd fa-mabnh al l-dar wal-isq). Ibid., 1:321. Ibid., 1:319 (fa-amm f masalatin fa-fh itiy lil-ibda yaghlib). Ibid. (here: taraddud).

Ibid. (mentioning other instances of seeming arational rules in ritual and non-ritual areas, including that it is illegal to buy wine because it is the means to drinking it, which is a add-eligible offense; requiring making ablution after sleeping because the latter is a means or has the possibility of triggering an impurity (khurj al-adath), etc.); see also ibid., 315 (al-aml al dhlik [i.e., lmastum al l-lams bil-yad] awa lil-ibda wal-bb [sic = mab?] f l-ibdt [il] l-itiy). For further elaboration of the precaution principle in the context of Sh law, see Chapter 6. 341

acceptance of the maxim as a adth but limitation of the principle, as Ibn al-Bann and Kalwadhn had done. All three limited the principle to textual instances of udd avoidance from earlier cases that appeared in, and were verified from, the adth literature. 1. Contested udd Avoidance It is difficult to say definitively what made Ibn al-Bann and Kalwadhn to accept the udd maxim as a adth. If they did succumb to the overwhelming trend by their time amongst other schools, that capitulation was not to last for long. The next generation of scholars by and large reverted to the longer standing anbal approach exemplified by Ab Yal and those who preceded himrejecting the adth basis for the maxim but accepting it as a valid principle nonetheless and applying it with the guidance of particular adth directives that were given priority in anbal doctrine. Ibn Qudma (d. 620/1223) and Ibn Ab al-Qsim (d. 624/1226), both commenting on Khiraqs law manual, accept the udd maxim, though they did not regard it as a adth.74 A century later, Ibn al-Qayyim (d. 751/1350) too accepted the udd maxim (despite his protestations to the contrary, as discussed in Chapter 1), coming down on the side of Ab Yal-style limited add aversion. Ibn Mufli (d. 763/1361) similarly signaled limited support for the maxim with his muted discussions of add-averting

74 For a preliminary discussion of Ibn Qudmas views, see Chapter 1. For Ibn Ab al-Qsim, see his alWi f shar Mukhtaar al-Khiraq, ed. Abd al-Malik b. Abd Allh b. Duhaysh (Beirut: Dr Khir lil-iba wal-Nashr wal-Tawz, 2000), 4:413 (discussing add-averting shubha with reference to the Case of Miz and applying the notion to retracted confessions: li-anna rujah shubha, wal-udd tudra bil-shubaht), 416 (citing the maxim to explain why add liability for zin requires male testimony based on the argument that Qurn, 2:282, signals that womens testimony raises the specter of shubha for which the add should be avoided: wa-li-anna f shahdatihinna shubha li-taarruq al-all ilayhinna wal-udd tudra bil-shubuht), ibid. (a similar use of the maxim for the bar against slave testimony). 342

shubha.75 And so it continued in the 8th/14th century and after, with no clearly identifiable temporal or geographical trend to predict which of the separate anbal currents would dominate: acceptance of the udd maxim as an expansive principle of criminal law as had Ibn Qudma,76 or acceptance of the maxim but extremely constrained application of it as had Ibn al-Qayyim.77 The only unifying feature linking the two approaches, if there is one, is an overarching traditionist-textualist mentality governing their school and thus the tradition from which they write.78 All things being equal, this orientation calls on
75 Ibn Mufli (d. 763/1361), Kitb al-Fur, ed. Abd Allh b. Abd al-Musin al-Turk (Beirut: Muassasat alRisla, 2003), 10:57 (noting that the absence of zin is required for add liability for zin: wa-yushtara intif al-shubha); see also ibid., 10:59, 61, and passim (limited mention of add-averting and non-addaverting shubha). Most likely, the stripped down shubha jurisprudence is deliberate, as Ibn Mufli presents and elucidates his own preference between the opinions of many earlier anbalssome of whom quoted the udd maxim as a adth and/or adopted an expansive shubha jurisprudence, including Ibn Ab al-Qsim in his Wi, Ibn Qudma in his Mughn, and Kalwadhn in his Intir. E.g., Zarkash (d. 772/1370), Shar, 6:296; Manr b. Ynus al-Buht (d. 1051/1641), Kashshf al-qin an matn al-Iqn, ed. Hill Muayli Muaf Hill (Riyadh: Maktabat al-Nar al-adtha, [1960?]), 6:96 (attributing a new adth form of the maxim to the Prophet: a combination of the standard form and some iteration of versions two or three that appear in Tirmidh, Bayhaq, and other collections: idra ludd bil-shubaht m staatum) and 6:94 (li-anna l-udd tudra bil-shubhat asab al-istia); see also 95, 96, 97, 98 and passim (multiple rulings of no add liability because of shubha, or add liability because of the absence of shubha (li-adam al-shubha).
77 76

In large part, they limit shubha (some hardly mentioning it at all) and udd avoidance to explicit cases of precedents from adth rulings. A major exception is the area of juristic difference (ikhtilf), a point worth considering since Ibn Qudma; these jurists give a slight nod to the concept. See, e.g., Ibn alLam, Qawid, 1:29 (citing the udd maxim, and noting that most scholars say that minority cancels liability and that the very [juristic] dispute creates a add-averting shubha). See also Al b. Sulaymn alMardw (d. 885/1480), Ta al-Fur, on the margins of Ibn Mufli, Kitb al-Fur, 10:59 (accepting the opinion that marriages of disputed validitysuch as temporary marriage or marriage without the permission of the womans guardiancreate add-averting shubha when it comes to zin accusations, but on the basis that the correct anbal opinion of two divergent anbal rules stipulates that no add is due because the contract is deemed valid). Cf. Ibn Qundus, shiya, on the margins of Ibn Mufli, Kitb alFur, 10:58-59 (similar, saying that the only genuine khilf regards mutabecause it was an early juristic dispute from the period of the salaf and their successors, such that it is a dispute established by text (thabata bi-na); but the other forms have no clear basis for khilf because they contradict no na, such that we can only say that there is khilf as to muta but the nik without wal about which the author [Ibn Mufli] spoke is only khilf amongst the exponents of the madhhab doctrine (ashykh al-madhhab). Cf. Ibn al-Mundhir (d. 319/930), Ijm, 99 (holding that there is no consensus: lam yathbut fh ijm). For general overviews of anbalism, see Wahba al-Zuayl, al-Fiqh al-anbal al-muyassar bi-adillatih watabqtih al-muira (Damascus; Beirut: Dr al-Qalam; al-Dr al-Shmiyya, 1997); George Makdisi, Hanbalite Islam, in Studies on Islam, ed. M.L. Swarz (New York; Oxford: Oxford University Press, 1981): 215-73. For a recent study, see Abdul Hakim I. Al- Matroudi, The anbal School of Law and Ibn Taymiyyah: 343

78

anbal jurists to define the scope of the udd maxim, shubha, or any other instance of udd aversion narrowly. They attempt to do so on the basis of explicit adth rulings, but they ended up needing to address juristic disputes both in and outside of the anbal school. This was due to the longstanding internal diversity (which Ab Yal tried to mediate), the growth of Islamic law and society, and their encounters with new cases being resolved in different ways amongst other schools in pluralistic legal systems. When it came to the udd maxim and udd jurisprudence in particular, the ambivalence that started with Ibn anbal and was exhibited by his students continued, and the line between anbal udd-maxim proponents and opponents did as well; the schools leaders vacillated between liberal acceptance of a udd maxim that continued to enjoy widely recognized legal authority amongst the larger juristic community on the one hand, and grudging acceptance of the maxim because of that same authority but its limitation to strictly text-based case-by-case rulings on the other. * * *

Two later anbal scholars are exceptional in the general anbal ambivalence toward the udd maximIbn Qudma (d. 620/1223) and Ibn Taymiyya (d. 728/1328). They each have exceptionally different takes on the maxim, almost at opposite poles from one another. 2. Expanded udd Avoidance Ibn Qudma cited the maxim repeatedly throughout his long section on criminal law, wherein he greatly expanded on Khiraqs condensed statements in his
Conflict or Conciliation, Culture and Civilization in the Middle East (London; New York: Routledge, 2006). For a general biography and discussion of the life and times of Ibn anbal, see Christopher Melchert, Ahmad ibn Hanbal (Oxford: Oneworld, 2006). For further discussion, see Chapter 1, pp. 24-28. 344

concise law manual. There, Ibn Qudma not only asserted that the maxim applied in every category to which non-anbal proponents of the maxim applied it, he also accorded it as wide a scope as they did, with only certain limitations. In saying that he applied it to every category of ambiguity, I refer to uncertainties in substantive law and procedural standards from the perspectives of both the accused and the jurist. Thus, Ibn Qudma categorized as add-averting shubha mistakes of law,79 mistakes of fact,80 and doubts about whether the criminal elements themselves were present. Part of that inquiry involves the definitional elements of the crime broadly, whichin his presentationstipulated that add liability arises only in the absence of shubha and requires the judge to ascertain whether there is any, and indeed seek to uncover some type of shubha.81 Another part of this latter inquiry goes to issues of mens rea, concerning voluntariness and criminal intent. Coercion creates a add-averting shubha,82 as does ignorance of the law.83 He also finds shubha in certain types of
79 See, e.g., Ibn Qudma, Mughn, 12:345-46, 459-63: Sex where shubha is possible based on purportedly validating legal text or status-relationship is not add-eligible, for example, sex with a jointly owned slavewoman or a fathers taking of his sons property. In the first case, the widethough incorrect assumption that any type of ownership validates sexual relations may create a genuine confusion that the rule applies to full- or part-ownership. In the second case, there is the Prophets well known saying, that you and your property belong to your father: anta wa-mluka li-abk, which makes plausible though erroneousa fathers belief that he has an ownership interest in his sons property for which taking is not theft. Another example is where a man sleeps with a slavewoman belonging to his son or his wife with her permissionthe first for the above stated reason, and the second based on a adth and a precedent of a 1st/7th century Medinese governor-judge of Damascus (who spent some months judging in Kufa), Numn b. Bashr, who found no add liability in such case and attributed the verdict to following a prophetic precedent. In all such cases, says Ibn Qudma, there is add-averting shubha: aladd alladh yandariu bil-shubaht). See ibid., 12:345.
80

E.g., ibid., 12:501: If a person mistakes an intoxicating beverage for a non-intoxicating one, he or she is not add eligible; the add is only due for drinking an intoxicant if the person knows that the drinkin large quantitiesis intoxicating.

The typical indication of jurists folding of shubha into the substantive elements, appear in their definitions of zin, which include the absence of shubha as a requisite element for add liability. See ibid., 12:354 (noting that to punishable zin must be absent any shubha, which the judge should aim to remove, especially with cases proved by confessions).
82

81

See ibid., 12:347-48. He notes here that there is no add liability against a rape victim (mukraha) because of the adth al-raf [Cf. the expanded Sh version below in Chapter 6], which stipulates that 345

evidence, sometimes calling into question testimony based on gender or personal status;84 at other times barring circumstantial evidence, like the smell of alcohol, from creating add liability.85 In these opinions, he largely followed Khiraq and prior anbal positions but his contribution was to append the language of shubha to explain existing anbal rulings. The interesting feature of Ibn Qudmas doubt jurisprudence is the wide scope that he accords shubha, extending it to new kinds that prior anbals had not
there is no liability for acts committed or omitted out of mistake, forgetfulness, or coercion (khaa, nisyn, istikrh), and because of a prophetic precedent, wherein the Prophet avoided imposing the add on a raped woman (fa-daraa anh [imraa ustukrihat al ahd Rasl Allh] al-add), signaling that the udd maxim applies to such cases (li-anna hdh [i.e., ikrh] shubha wal-udd tudra bil-shubaht). See ibid., 12:343, 345: Sex within marriages about which there is juristic consensus of invalidity constitutes zin only if the parties involved know of the prohibition; ignorance of the law constitutes a add-averting shubha, as Umar ruled in the case of a woman who claimed not to know that it was illegal to remarry during her divorce waiting period. Ibn Qudma notes that this is a typical area of ignorance amongst laypeople (mithl hdh yujhal kathran wa-yakhf al ghayr ahl al-ilm). To remove add liability, the ignorance must be plausible, which can be a contextual determination. Thus, someone raised in a Muslim society cannot claim not to know that eating pork or drinking alcohol is illegal; because such claims of ignorance would be implausible, they are to be rejected and cannot create add-averting shubha. See, e.g., ibid., 12:275-77 (discussing apostasy rules in that regard).
84 83

Sometimes the rules seem to conflict, exhibiting a clear bent toward reading in shubha and add avoidance. For example, he says that a judge is to reject womens testimony in udd (here: zin) proceedings because of the Qurnic verse requiring four (male) witnesses for zin and the verse on female testimony in the commercial law context, Qurn, 2:272, notoriously equating one man to two women for witnessing contractual proceedings so that if one forgets the other may reminder her. Ibn Qudma says that this rationale can be understood to suggest that there is perpetually doubt in womens testimony, and so constitute the type of add-averting shubha when it comes to udd laws (f shahdatihinna shubha li-taarruq al-all ilayhinna wal-udd tudra bil-shubaht). But he says at the same time that where male testimony conflicts with female testimony on udd matters, the womens testimony prevails. That is, there is no add liability for either an accused woman or for witnesses against her (i.e., for defamation) when four men testify that a woman has committed zin but [an unspecified number of] women testify that the accused is a virgin, because the womens testimony as to virginity creates a add-averting shubha (fa-yakn dhlika shubhatan f dar al-add anhum, ghayr mjib lah alayh, fa-inna l-add l yajib bil-shubaht). See Ibn Qudma, Mughn, 12:363-64. Cf. ibid., 12:363-64, (noting that slave testimony also creates add-averting shubha: annah [abd] mukhtalaf f shahdatih f sir al-uqq fa-yakn dhlika shubhatan tamna min qabl shahdatih f l-add liannahu yandari bil-shubaht). See ibid., 12:501. He uses the udd maxim to provide support for the view that there is no add liability with the mere smell of alcohol on ones breath or for drunkenness. The rule is based on Umars practice in the former case as well as many possibilities that raise the specter of doubt as to whether the smell requires add liability, e.g., that the person thought the drink was non-alcoholic, was forced, or drank apple juice that gave off a smell similar to wine, etc. These possibilities constitute add-averting shubha for which there is no add liability: lam yajib al-add alladh yudra bil-shubaht). 346

85

recognized at all (in contrast to the other Sunn schools), applying it widely as a principle that guides rather than is dictated by individual case-by-case rulings, and employing it even to trump existing rules within his school. The new area of shubha is interpretive ambiguity, which Shfis and Mliks had long recognized. Ibn Qudma relates as a anbal opinion the other schools rules about interpretive shubhathat juristic dispute about a ruling itself creates add-averting ambiguity. Thus, he says, there is no add liability for any zin accusation arising from a marriage the validity of which is in dispute amongst the various schools.86 He explains that it is the opinion of most jurists that such disputes create shubha, by which udd sanctions should be avoided by operation of the udd maxim.87 As for the maxim as a outcome-determining principle rather than a reflection of case by case rulings, this usage shows up most starkly in the way Ibn Qudma employed the maxim as a tie-breaker amongst different anbal positions or to reach a decision in novel cases. That is, when faced with several different opinions attributed to Ibn anbal, Ibn Qudma uses the udd maxim to prefer the more lenient one. For example, if there is witness testimony to establish a case of theft, but the thief denies having stolen or claims that he thought the stolen item was his or that the owner gifted it to him or the like, there were three different anbal positions on the matter, some
86 Ibid., 12:243-44 (listing temporary marriage (muta), shighr, tall, marriage without a guardian or witnesses, marrying the sister of ones divorced wife during the latters waiting period, marrying a fifth wife during the waiting period of a divorced fourth, and marrying a Zoroastrian). This is the opinion of most jurists, he observes, because difference as to the legality of marriage (al-ikhtilf f ibat al-wa fh shubha, wal-udd tudra bil-shubaht) and emphasizing that Ibn al-Mundhir noted agreement of all scholars on this point in the 3rd/9th century. Ibid. Likewise, he notes in ibid., 12:350, that the legality of anal sex with women is disputed and that dispute itself creates a add averting shubha (shubha mnia min al-add), by contrast to male sodomy which is always add-liable because of the claimed agreement on its prohibition.
87

Ibid., 12:243-44. 347

attributed to Ibn anbal himself: (1) there is no add liability, (2) there is add liability because such liability does not go away with claims from the accused in the face of reliable external evidence to the contrary, and (3) there is add liability only if the accused has a reputation of lying and/or stealing. Ibn Qudma prefers the first opinion because of the udd maxim.88 In doing so, he comments that the maxim encourages judges to pursue paths against add liability as a technical legal matter, just as in cases of zin, where the judge is to inquire about the act to perhaps reveal uncompleted elements or the lack of criminal intent in the face of seeming external evidence to the contrary.89 Moreover, he adds a comment about notification and specialization of the law. That this type of knowledge is specialized juristic procedure not common to thieves90 saves this type of jurisprudence from being considered contrary to the law. In some discussions, Ibn Qudma entertains the notion that the udd maxim applies even when it diverges from Khiraqs rule, as in the question of whether there is add liability for a slave who confesses to theft of an item found in his possession against the masters contrary claim that the property stolen is in fact his own. In such cases, most jurists agreed that there was no add liability. Ab anfa says that there is no add liability in the new scenario by way of the udd maxim in that the competing pieces of evidence present shubha. But Ibn Qudma says that confession to theft is taken at face value and the proper rule, according to Khiraq, is that the slave is add 88 Ibid., 12:472 (li-anna l-udd tudra bil-shubaht).
89

Ibid. See also ibid., 12:359 (noting the anaf rule that a mute persons confession through signlanguage constitutes add-averting shubha as does witness testimony against him, based on an application of the udd maxim to both, and surmising that the anbal positionKhiraq is silent on this issuemay well support add-aversion for such confessions as well, though not for accusations proved with external evidence (li-anna al-add l yajib maa l-shubha wal-ishra l tantaf maah l-shubaht)). Ibid. 348

90

eligible. Yet, Ibn Qudma acknowledges that there is room for applying the udd maxim because of the possibility that the item really does belong to the master, which could indeed be read as shubha.91 Here, in dicta, he perhaps opens the way for later anbals to adopt this opinion on the basis of the udd maxim, though he does not explicitly adopt it himself.92 Ibn Qudma does not apply the maxim without limitation. By and large, he attempts to remain within the settled opinion of the anbal school and true to the doctrines put forward by Khiraq on whose manual he is commenting. Thus, where application of the udd maxim would present direct conflicts with Khiraqs opinion, Ibn Qudma did not apply it. For example, if someone says zanata, which literally means you scaled [a mountain], rather than zanayta, which means you committed fornication or adultery, this is add-eligible defamation (qadhf) if meant in the second sense. Here, as Khiraq (as Shfi) had held, the rule is based on intention, and when the criminal intent is there, there is no add-averting shubha despite the fact that the word uttered does not actually mean anything that constitutes a add offense!93 Ibn Qudma also rejected applications of the maxim that go against religious or community values of sexual moresa common area of udd-maxim rejection even in the schools that champion it most.94 He rejected Ab anfas infamous application of the maxim to avoid udd punishment for men who marry their sisters or other marams with the view that the contracteven though defectivecreates a add-averting shubha. Ibn
91 Ibid., 12:451 (wa-yutamal an l yajib al-qa li-anna al-add yudra bil-shubaht wa-kawn al-ml makman bih li-sayyidih shubha).
92 93 94

Ibid. See ibid., 12:396. See Chapter 4, section 3. 349

Qudma rejects contractual shubha for the same reason that others did: because that relationship results in sexual relations between two people about which there is consensus is not licit, particularly when the perpetrator knows of the prohibition; defective contracts can only create shubha about legality if the contract has some valid, even if erroneous, basis in the first place, particularly between parties, but the contract here is per se void and in fact is never solemnized because the parties, if brother and sister, are never able to enter into such a contract. 95 Ibn Qudma, in sum, applied the maxim broadly. It pervaded every section of his criminal law jurisprudence, and was the key governing principle of that area of lawsubject only to certain limitations. In those limitations, we see where he drew a bright line around religious values and anbal school precedents thatdespite the expanse of the udd maximhe was not willing to infringe upon. Regardless, the maxim was so pervasive and important that he regarded it as a matter of consensus, pointing to Ibn al-Mundhirs statement to that effect three centuries before his time.96 In this same vein, contemporary anbal jurist Ibn Ab al-Qsim (d. 624/1226) accepted the maxim too, like Ibn Qudma, not as a prophetic adth but as a guiding principle of criminal law. And most subsequent jurists followed suit. The major exception to that was Ibn Taymiyya, who left his own imprint on the law.
95 See ibid., 12:341-42. See also ibid., 12:348 (rejecting another of Ab anfas anomalous rulingslater billed as his expansive application of the udd maximthat a man who is coerced into committing zin is not add-eligible if the suln does the coercing).
96

Ibid., 12:2444 (qla Ibn al-Mundhir ajmaa kullu man nafu anh min ahl al-ilm anna l-udd tudra bilshubaht). As noted above, Ibn al-Mundhir (d. 319/930) made this statement in his work of some 765 matters on which jurists had reached consensus (defined, implicitly, as the overwhelming majority view) by the end of the 3rd/9th century. See Ibn al-Mundhir (d. 319/930), Ijm, 132 (wa-ajma al dar al-add bil-shubaht). Notably, he does not regard it as a adth, and an editor of one edition says that most of the items in his list has no basis (al) in Qurn and Sunna or is of uncertain meaning (ghayr qi al-dalla). See Ibn al-Mundhir, al-Ijm, 113 (listing a citation to the maxim along with commentary by the editor Abd Allh b. Zayd l Mamd). 350

3. Rejected udd Avoidance Ibn Taymiyya (d. 728/1328), as usual, diverges from the trend. Most other anbals, beginning at least as far as back as Isq b. Ibrhm, had appealed to the udd maxim to differing degrees. By contrast, Ibn Taymiyya neither accepted nor incorporated the maxim in any shape. His was a reversion back to what he perceived to be the original and more constrained jurisprudence of udd laws that predated the adoption of the udd maxim as a valid legal principle. In his Fatw, he never mentions the maxim.97 Usually, he advises that there is add liability in response to the various questions presented about which the petitioner is uncertain. He aims to base his arguments on the texts of the Qurn and the adth, and also offers historical explanations for why some schools diverge from the rule of mandatory udd liability and enforcement.98 In the few instances where he does note that there is no add liability, he appeals to textual statements for those rulings, without mentioning shubha. For instance, concerning the question of whether repentance removes add-liability, he cites a text affirming that it does only if the perpetrator properly repents before the matter is brought before the courts.99 In fact, he prefers that crimes be concealed in line with the adths advising discretion, in

97 Ibn Taymiyya (d. 728/1328), Majm al-fatw, 34:177ff (section on udd laws).
98

E.g., ibid., 34:186-91 (explain away the historical circumstances surrounding the anaf belief that drinking nabdh was not a add-eligible crime, despite the fact that it violates what Ibn Taymiyya takes to be the controlling adth on the matter: every intoxicant is wine, which is prohibited by clear Qurnic texts).

Ibid., 34:179-80 (on zin). The texts include: (1) adth: man ubtil bi-shay min hdhihi l-qdhrt fa-lyastatir bi-satr Allh; fa-innahu man yubdi lan afatah nuqim alayh Kitb Allh; (2) athar: man adhnaba sirran fa-l-yatub sirran, wa man adhnaba alniyatan fa-l-yatub alniyatan; (3) Qurn: wa-lladhna idh faal fishatan aw alam anfusahum dhakar llh fa-staghfir li-dhunbihim. Ibid. 351

99

which case private repentance is appropriate.100 But, once the crime has been brought to the courts, it must be punished publicly, he says, and he takes this to be implied by the Qurnic rule outlawing zin. Accordingly, he reports the case in which Abd alRamn, son of the caliph Umar b. al-Khab, was dragged to court by his brother for drinking wine. The two lived in Egypt at the time, where Amr b. al- was both governor and presided over the courtas was typical. The governor flogged him privately, for which he drew censure from Umar when he heard about it back in Medina. He sent for his son and flogged him publicly there. Clearly, he did not think that the obligation to enforce the udd laws went away with the first sentence.101 The story was a lesson for Ibn Taymiyya that concealed crimes permitted private repentance, but once the matter was public, it was to be punished publicly. Why? In large part, it had to do with his traditionist orientation to law and theology. Other studies have discussed at length his maverick theology and his jurisprudence, which I do not seek to cover here. What is important for us to note is how Ibn Taymiyyas traditionism shaped his udd jurisprudence and what seems to be his flat-out rejection of the udd maxim, unique amongst the anbals. At bottom, Ibn Taymiyya was a traditionist who had a rather rigid theory of legal authority that emphasized exclusive divine judicial supremacy. All law was divine, explicated through

100 Ibid., 34:180 (noting that repentance and concealing the matter from the courts (satr) is preferable (afal) so long as it meets the requirements of correct repentance (tawba aa), based on the adths encouraging as much) (citing Qurn, 3:135 and two adths); cf. 15:302-03 (similar), 14:286-87.
101 Ibid., 14:287 (commenting on Qurn, 24:2 (wa-l takhudhkum bi-him rafa)). For the full story, see Chapter 2, Appendix, Case no. 12 and sources cited therein.

352

the Qurn and adths, and he sought to reduce the scope of human discretioneven in interpreting those sources (whether for purposes of law or theology)to nil.102 C. anbal Doubt Jurisprudence The foregoing discussion exhibits the tremendous diversity in anbal thought. Some rejected the udd maxim, some wholly embraced it, and others were reluctant adherents. After Ibn Qudma and the generation of his immediate students, leading anbals follow this line of mixed opinionstypically rejecting the maxim as a prophetic adth, but supporting its application in extremely limited circumstances: when there is some legal impediment, specifically where the act does not meet the specific elements of the crime laid out in the text or where the evidence is insufficient to conclude that there is add liability. Both categories of impediments are guided by texts. And for about two centuries, the maxim recedes into the background in anbal jurisprudence.103 Over time, there cannot be said be a consistent anbal jurisprudence on the udd maxim or, for that matter, any broad acceptance of substantive legal maxims as guiding principles of law, such as one observes in other schools.104 They took a case 102 Ibn Taymiyya, Fatw, 34:175 (communal obligation: far kifya, and noting that God addresses believers with absolute statements of law (khiban mulaqan), signaling absolute obligation) (citing the main udd verses: 5:38 (penalty for theft); 24:2 (penalty for zin), 24:4, 32 (penalty for qadhf), etc.). Thus, Khiraq (d. 334/945) makes no mention of the maxim in the 4th/10th century, though perhaps this is to be expected in a mukhtaar. See Khiraq, Mukhtaar, 190-97 (kitb al-udd). Yet non-mukhtaar works available from the next century do not give the impression that the maxim is central to or accepted in anbal jurisprudence. The references to it are spotty. Q Ab Yal (d. 458/1066) ignores it in his work of law, but others accept it as a adth, e.g., Ibn al-Bann (d. 471/1078-9), Muqni, 3:1120-1; after the 5th/11th century, however, jurists do not seem to accept it as a adth though most do apply it broadly.
104 103

Of course, Ibn Rajab has his work on legal maxims, Qawid, but it encapsulates anbal substantive doctrines of law, rather than providing principles to guide future application. There are some later jurists, like Ibn al-Lam (d. 803/1401-2), who did collect maxims; it may be that these works should be taken to have followed the larger trend of contemporaneous jurists from other schools composing legal maxims literature amongst other schools of his time. Regardless of whether the aim of anbal works in 353

by-case approach unified less by doctrine than by appeal to traditionist-textualism. To be sure, they saw Ibn anbal as the pioneer and took him as a starting point (looking to his opinions and basing themselves on his doctrine, as they did too with the law manual of Khiraq, which inspired so many commentaries). But, as Isq showed in his disagreements with Ibn anbal (and as Ibn Taymiyya would later display), they were not bound to follow any teacher, including Ibn anbal, if the teacher got it wrong in their view; in all cases, the traditions trumped. But the traditions cut in two directions when it came to the udd maxim. The adth collections reported early cases of instances of udd aversion and udd imposition, as discussed above; Ibn anbal rejected the udd maxim as a adth but seemed to accept it as a precedent; and even his opinions were reportedly double-minded when it came to applicationwhether there was add liability or not in certain cases. This two-edgedness that depended on a case-by-case analysis resulted in irresolution amongst anbals concerning what to do about the udd maxim. They shifted from accepting the maxim to rejecting it, with no clear thread connecting them. The useful point to note here is that there was precedent for the wavering, and its continuity was ensured so long as the traditionist theology gave primacy to tradition over rationalist principles (like the udd maxim if indeed it was not a adth), in attempts to subordinate human discretion to Gods. anbal jurisprudence never settled on a single approach.

this field was also to collect prior precedent and guide future cases, the maxims literature is useful for revealing some anbal values. Notably, Ibn Rajab does not include the udd maxim in his work; Ibn alLam does. 354

III. hir Shubha

In Chapter 1, we saw that hirs were unequivocal in their rejection of the udd maxim, and of any who would avoid udd sanctions as a matter of course. The schools infamous spokesman, Ibn azm, harshly criticized jurists who adopted the adths that tended toward udd avoidance uncritically and applied them broadly.105 His arguments against the maxim fell into three lines of attack: inauthenticity of the udd maxim as a adth, contradiction of the core Islamic law requirements to impose udd laws strictly out of deference to the Lawgiver, and incoherence and arbitrariness in the application of the udd maxim for those who accept it.106 Chapter 1 dealt with the first question at length. Here, we expound on the second and third lines of attack, which can be grouped under a single heading concerned with methodological soundness: judicial subservience through a coherently textualist interpretive philosophy of law. Before detailing Ibn azms developed arguments, we look at the early hirs. A. Developing hir Textualism Ibn azm was following the doctrines of his forebears. The eponym of his hir school was Dwd b. Al b. Khalaf, known as Dwd al-hir, the textualist, who had studied under the traditionist Ibn Rhawayh. He took a stance of adopting the apparent meaning of the text,107 and this manifested itself in strict textualist
105 See Ibn azm, Muall, 11:153 (masalat hal tudra al-udd bil-shubaht am l).
106 107

See Chapter 1, 42-44.

Dwd permitted inferences from textual indicators, inference being the fundamental principle on which [the hirs] built their doctrine. But he rejected the use of analogy, equity (istisn), and other forms of ijtihd used by others to extract rules not apparent in or easily inferred from the text. For these views as recorded in his sons manual of jurisprudence, see the excerpts taken from Q Numn in Devin Stewart, Muammad b. Dwd al-hirs Manual of Jurisprudence, 99-160, esp. 154 (the quote above), 139-52 (against legal analogy and applying equitable principles [istisn]), 153-54 (on inference 355

interpretations of law, including texts outlining criminal law rules and proceedings. Examples of his strict textualism in criminal law include cases involving defamation and slave punishment. It is virtually axiomatic for most schools that slaves receive half of the punishment due free men and women for all crimes, based on a broad reading of the directive to impose half of the punishment on married slavewomen who commit zin: If [the slavewoman] is married [or chaste] and commits a grave sin [adultery], then she is to receive half of the punishment for the free, chaste women.108 Dwd reads this verse narrowly to apply only to married slavewomen; unmarried slaves, male and female, are to get the full punishment of one hundred lashes due for fornication and are to receive the full sanction for defamation.109 He also reads the text establishing hand-amputation for theft without qualifications; thus, there is no minimum value of the stolen item to trigger the punishment because the text specifies none; for him, theft is theft, and should be punished uniformly regardless of the value of the stolen goods or the manner of the theftissues that occupied other jurist so much as matters of shubha.110 His attention to the apparent meaning of text or evidence manifests itself in the same approach to interpretation that we see Ibn azm later adopt. As does Ibn azm,
(istidll)), 154-58 (against ijtihd). For his life, works, and doctrines, see rif Khall Muammad Ab d, Imm Dwd al-hir wa-atharuh f l-fiqh al-Islm (Kuwait: Dr al-Arqam, 1984).
108

Qurn, 4:25 ([F]a-idh uinna fa-in atayna bi-fishatin fa-alayhinna nifu m al l-muanti min aladhb .). See Sha, Risla f l-madhhab al-Imm Dwd al-hir (collecting masilopinions on legal issues collected from various works and attributed to Dwd b. Al), 24, 25. Ibid., 25 (Dwd: li-umm al-ya [i.e., wal-sriqu wal-sriqatu fa-qa aydiyahum (Qurn, 5:38)] wahir adth Ab Hurayralaana llhu l-sriq yasruq al-baya fa-tuqa yaduh wa-yasruq al-abl fa-tuqa yaduh). Note that this is in sharp contrast to Shfis view in the section on udd laws in his Umm; the strict-textualist reading of the Qurn without the adth seemed to be the impetus for his insistence that the Qurn can only be understood with reference to adth. 356

109

110

Dwd maintains that whenever the crime is established, the add applies even if someone confesses to committing zin but then retracts the confession.111 In matters of criminal law, the governing principle is not fairness or giving the opportunity for the accused to mount a defense, much less to disingenuous claims of shubha. Rather, for him, the criminal trial is truth-seeking, aimed to establish with certainty whether a crime has taken place and punishing the perpetrator accordingly. To that end, he grades evidence with respect to the means that provide the most certain picture of what happened and thus the correct basis for a ruling on udd imposition: The strongest evidence is the [judges] own knowledge, then confession, then outside evidence (bayyina)typically witness testimony.112 Thus, he also holds thatin contrast to most Sunn schoolsa judge not only can, but must, judge according to his own private knowledge if it illuminates what actually happened, and he need not rely on or even request evidence where it is unilluminating.113 Dwd roots all of this in a general sort of prophetic precedent that incorporates notions of culture and convention.114 During the Prophets time, there was some question about whether a woman named Hind, Muslim convert of one of his nemeses, had stolen money from her husband. The Prophet ruled that she had taken from him an amount to suffice her and

111 Ibid., 24.

112 113 114

Ibid., 26 (specifying that the rule applies to dim, amwl, qi, furj, and udd). Ibid.

As we will see below, this is a precursor to Ibn azms approach when he recalled the Prophets practice of not asking for evidence of claims of marriage based on Arab culture and conventional norms for traveling and community life. 357

her son according to convention,115 and did not require her to produce evidence to support her claim.116 All of these rules are purportedly taken from the text, and Dwd holds that the judge or jurist must do no more and no less in deriving and applying legal rules. His school of thought vehemently opposed the use of judicial discretion, as expressed colorfully in one passage of his sons manual on jurisprudence, when describing the Prophets instructions to Umar in dealing with a thorny inheritance issue: Or (do you think that), instead, [the Prophet] commanded [Umar] to adopt his personal opinion, refer to his own whim and choice, and resort to his own discernment and judgment? For, if he intended this meaningand God forbid that he should have intended this!he would then have been commanding Umar to adopt that which God, the Glorious and Almighty, had prohibited the Prophet himselfGod bless him and grant him peace!from adopting, despite Gods knowledge that (the Prophet) was the most sound of mankind in his perception and discernment, and the most excellent of them in his judgment, and consideration. GodMay His praise be manifest!said, We have revealed the Book unto you with the truth so that you may judge between mankind by that which God shows you. Do not be a pleader for the treacherous. (Q. 4:105) God did not say, by that which you think for yourself or by that to which your choice and perception lead you. GodBlessed be His name!said, Who is more a miscreant than he would follows his own desire, with no guidance from God? (Q 28:50).117 Further, he added that the verse which was revealed in the text should suffice you.118 Ibn Dwd commented that, in so saying, the Prophet clearly required adherence to the text. The same applies to all of the verses and adths that the Sunn proponents of
115 Ibid. (bil-marf). Ibid. For more on the hir position against ijtihd bil-ray, see Mamd, Ittijht, 387-89 (citing Ibn Abd al-Barr, Jam bayn al-ilm wa-falih; Ibn al-Qayyim, Ilm al-muwaqqin [section on false, arbitrary personal opinion: anw al-ray al-bil]; Ibn azm, Ikm).
117 118 116

Ibn Dwd, Wul, 156 (as translated and quoted by Stewart).

Ibid., 155. The issue was kalla, the meaning of which appears to have been uncertain early on according to those relating adths and commenting on the Qurn, but which came to be understood as a person who dies without surviving children or parentsas understood here by Dwd. The term appears in Qurn, 4:12 and 176. For an analysis, see David Powers, Studies in Qurn and adth: The Formation of the Islamic Law of Inheritance (Berkeley: University of California Press, 1986). 358

ijtihd trot out to justify their judgments on the basis of personal whims and preferences. Most famous is the adth of Mudh b. Jabal (reporting that the Prophet affirmed Mudhs plan to exercise ijtihd when sent as a judge in Yemen). hirs rejects the adth with criticism as to both authenticity and content: the chain is unreliable and the content contrary to the overarching, oft-emphasized textual principle of adherence to the text.119 In sum, there is one right answer, and it is located in the text. Judicial reasoning that goes beyond the text (for Ibn Dwd: arbitrary personal opinion [ray] and ijtihd120) risks arriving at divergent answers and missing the correct one. To prove it, consider this counterfactual example: If two people were to perform ijtihd and arrive at different opinions, the truth would lie in two contradictory answers at the same time. ... The truth is that which God, the Glorious and Almighty, enjoined upon us. We must therefore appeal to the Qurn as a judge.121 B. A Textualist Theory of Ambiguity and the Principle of Precaution Two centuries later, Ibn azm elaborated on Dwds textualist approach. For Ibn azm, ambiguity does exist, but it is limited. The most common form of ambiguityproper is textual ambiguity, defined as words that have more than a single meaning. In such cases, one must not restrict the word to one meaning; all possible meanings are valid, provided they do not result in a logical absurdity.122 Someone could also be
119 Ibn Dwd, Wul, in Stewart, 155.
120

Ibid., 157.

121 Ibid. He adds that, were we to appeal to judges to decide matters according to their own whims [each would] judge by his fancy, (giving a ruling) opposite that determined by the fancy of his companion. According to this doctrine, the two rulings would be correct, despite their contradiction. Ibid., 157-58. 122

See Ibn azm, Nubdha, in Sabra, Ibn azms Literalism, 7-40, 307-48. 359

uncertain about the law because they are simply ignorant of the appropriate ruling (jahl).123 In such cases, they are required to ascertain the rule themselves or else ask a learned scholar for their opinion, so long as they are sure to investigate the bases of that scholars ruling to ensure that it follows the Qurn and Sunna rather than taqld of one of the Sunn schools of law.124 Or the person might doubt whether a reddish liquid in front of them is wine or not. In that case, they are to ask someone knowledgeable what the liquid is before drinking it.125 In all these situations of doubt, the adth requires the person to avoid the act altogether if they cannot resolve the ambiguity, out of precaution, lest they fall into the clearly prohibited. He too is advising a principle of precaution (itiy), not in so many words, of taking the safer way. In sum, Ibn azm is essentially saying, that there is a presumption of liabilityin the face of potential illegality (ar)even though he insists that he adopts neither presumption of legality or illegality.126 The Qurn and Sunna are the only valid sources for law, he says, and these sources specify that udd are obligatory whenever the evidence establishes a crime.127 Accordingly, in his udd jurisprudence, Ibn azm was most concerned with first authenticating and then applying what he deemed to be the dictates of the text.
123 See Ibn azm, Muall, 12:60. Notably, both of these types correspond to shubha ukmiyya discussed in other schools.
124

See idem, Nubdha, 20. For more of Ibn azms arguments against taqld, see idem, Ikm, 18, 793ff, 797ff.

125 Or there could be doubt as to whether the evidence is sufficient to establish the crime. See, e.g., Ibn azm, Muall, 12:186-88 (detailing the case of a man and woman arrested for zin who claimed to be married, discussed below). But he does not view this as doubt or ambiguity. It is either that the crime is established, or it is not. 126

This stance is similar to that of the Astarbdian Sh textualists, as we will see in the next chapter, elaborating on the principles and presumptions of legality and innocence. See Chapter 6. Ibn azm, Muall, 8:252. 360

127

1. Reading Traditions in Andalusia: Authentication Ibn azms legal treatise, al-Muall bil-thr,128 centeredunsurprisinglyon traditions, as guideposts for the law contained in the Qurn and Sunna. His was similar to the approach of traditionists in the Sh context,129 except that Ibn azm added considerably more commentary as he sought to demonstrate the correctness of his views over those of other Sunn schools of law. Organizing the work by fiqh topic, he typically began each subsection by discussing a adth or a controversial opinion, laying out the various opinions where there were differences, and then showing why his textualist view was superior than other Sunn views based on arguments of the greater degree of authenticity of the adths on which he relied and the consistency of his interpretations in light of overarching text-based principles. He cast this same light on the competing traditions about udd imposition and avoidance. For example, the Case of Miz, where the Prophet sentenced a man because of his confession to zin only after turning him away four separate times, does not shed light on whether and how the Prophet handled doubt. Proponents of the udd maxim claim that, by asking Miz about alternative non-zin acts that he might have engaged in, the Prophet was trying to find or introduce shubha. They also claim that the Prophet rebuked those who carried out the sentence in the end, because he identified Mizs attempted escape as an avenue for repentance, which they deemed to be yet another type of shubha. But, Ibn azm retorts, these free readings come from mere speculation of the maxim-proponents, and are not suggested by the text at all. The overarching principle of criminal law outlined in the texts of the Qurn and Sunna, he
128 Ibid.
129

See below, Chapter 6 (discussing approaches of Sh traditionists from Ibn Bbawayh to Astarbd). 361

maintained, states that udd imposition is obligatory when someone has confessed to a crime or when it has otherwise been established with certainty.130 None of these texts make mention of shubha, which is irrelevant to the question of add liability; either the crime happened and was proved in a court, in which case there was add liability, or there was no proof for the alleged crime in court, in which case there was no add liability.131 On the question of intercession or attempting to alter the bases for add liability after guilt has been established, he holds that the thrust of the Qurn and Sunnaic texts toward udd imposition bars the possibility of intercession once a crime has been brought before the court.132 In his review of afwns Case, he first attacks the authenticity of the report. Recall that in that case, a man stole a cloak from afwn, who brought him to the Prophet for adjudication and then tried to intercede to avert the punishment after sentencing.133 Ibn azm rejects the idea that the Prophet canceled or considered canceling add liability after the crime was established; the report, he points out, contradicts the bar on intercession to change the verdict after the fact. Moreover, it does not come from records that can be authenticated. Of the several versions recorded in adth collections, none has an unbroken chain of reliable transmission connecting back to the supposed events in question.134 Instead, other

130 Ibn azm, Muall, 8:252.

131 132 133 134

Ibid., 12:256. Ibid. See Chapter 2, Appendix, Case no. 9.

Ibn azm, Muall, 12:54-57 (listing several versions, each with different narrations and isnds, calling most munqaicoming from A, Ikrima, Amr b. Dnr, and Ibn Shihb [al-Zuhr]none of whom met afwn, and noting that the others include transmitters who are unreliable (af) or unknown). 362

adths make clear that no intercession can void add liability once a crime has been adjudicated in court. In that vein, Ibn azm examines one of the overlook sayings (tafaw), and concludes that only the version with the udd exception is authentic.135 Its chain is unproblematic and indeed, there is other support in the sources for the view that udd punishments are only obligatory once they reach the imm (read: courts) and he establishes guilt. As there is no text or consensus to the contrary, either dropping a add claim that affects one personally or bringing it to the courts (the suln) is of neutral valueneither prohibited or encouraged.136 Ibn azms preferred course, without issuing a fatw on the matter, is to overlook minor misdemeanors.137 But if an act is truly criminal and causes harm to an individual victim, then his advice is to bring the matter to court. 138 In sum, for Ibn azm, the traditions regarding udd imposition and avoidance are questionable whenever they suggest avoiding udd enforcement when a matter has been brought before the courts. The texts, Ibn azm says, are clear that udd punishment is mandatory whenever a crime is committed and proved in court. adths to the contrary are inauthentic and should not be relied upon for the udd maxim proponents permissive take on udd avoidance. Even the authentic adths on which udd maxim-proponents rely to shore up their positions contain no evidence that the

135 Ibid., 12:57 (citing the following version of the adth: tafaw al-udd f m baynakum fa-m balaghan min add fa-qad wajaba).
136 137 138

Ibid. (mub). Ibid. (an yaf anh). Ibid. 363

presence of shubha ever drove the Prophets decisions.139 Rather, his udd jurisprudence was bound by the same considerations that should guide any jurist: a mandatory requirement to impose the add punishment when the crime is proved in court; otherwise, no add liability applies. 2. Interpretive Consistency: Social Status and Social Mores Ibn azm also addressed issues of social status and social mores that had crept into the law amongst udd maxim proponents. Some of their rules that he read as tending to privilege those of high social status and discriminate against those of low social status were to be rejected as contraventions of the texts. Consider the issue of whether defaming slavewomen is a criminal act subject to udd sanctions. Most jurists hold that it is not, on the basis that a requisite element for the crime of defamation is that there be a violation against the honor of person deserving respect. These jurists take the view that a slaves low station in life means that they have no personal honor (urma) to be violated.140 Ibn azm takes the opposite view, as usual, attempting to root his arguments in the text of the Qurn and traditions. A series of adths deal with a related questionmen who defame slavewomen who are mothers to their children (umm walad), a special category of slavewoman. Ibn Umar, the great jurist of Medina in the 1st/7th century, was once asked about a man who defamed another mans umm walad, and he ruled that the one committing defamation was liable for the add sanction.141 Hence, he concluded, the

139 Ibid., 12:256.

140 141

Ibid., 12:230-33. Ibid., 12:232. 364

traditions explicitly place at least this type of slavewoman on par with any other woman; both possess honor that is not to be violated.142 More broadly, Ibn azm adds, one of Islams central values is social egalitarianism, its laws intent on replacing social hierarchy on the basis of bloodlines with honor on the basis of ethical and religious standing. God specifically emphasizes in the Qurn that O people! We have created you out of male and female ...; surely, the most honorable of you in Gods eyes is the most God-conscious.143 From this, he explains, we know that all people are born of [the same] man and a woman [sharing the same origins]; people then rise in preference on the basis of their morals and religiosity, not lineage or stature.144 Finally, Ibn azm notes that the Prophet reiterated the emphasis on egalitarianism when he equated the free and the slaves in saying to his Muslim followers that your lives, your property, your honor, and your lineage are sacred to one another, without distinction by class or station.145 Ibn azm concluded that it was ridiculous and contrary to the explicit text of the Qurn and the adth then to say that defamation against slaves is non-punishable on the false notion that slaves are not entitled to respect! Any believer deserves great respect, and in fact, there are some slaves who are better in Gods eyes than a Qurash

142 Ibid. (amm qawluhum l urma lil-abd wa-l lil-ama fa-kalm sakhf ).
143

Qurn, 49:13 (y ayyuh l-nsu inn khalaqnkum min dhakarin wa-unth inna akramakum inda llhi atqkum) (quoted in Ibn azm, Muall, 12:232). Ibn azm, Muall, 12:232 (thumma tafala l-ns bi-akhlqihim wa-adynihim l bi-arqihim wa-l biabdnihim [sic = ansbihim?]).

144

145

Ibid. (adth: inna dimakum wa-amwlakum wa-arakum wa-abshrakum [sic = ansbakum?] alaykum arm). 365

caliph, whom Sunns revere as uniquely qualified to hold the position of leadership over the community.146 * * *

Ibn azms attacks highlighted the importance of maintaining Islams social mores concerning the institution of marriage, against proponents of the udd maxim whom he accused of using the maxim to support their own opinions rather than submitting to the dictates of the text. One such instance arises in a dispute about handling prostitution, that is, a woman renting herself out to a man for sex and/or the man demanding that of her.147 Ab anfa infamously held that add sanction was to be avoided for this practice, relying on the udd maxim plus episodes reported in the traditions that depict Umar avoiding the add in situations that could be understood as prostitution. Recall the case wherein a woman who was starving approached a shepherd begging desperately for food. The shepherd conditioned the gift of three bushels of dates on her agreement to let him have sex with her. She obliged, and when the story reached Umar, he said [that is] dowry, dowry, dowry, and thereby averted the add punishment.148 Ab anfa inferred from Umars decision that prostitution does not warrant add liability; instead it is a valid, though defective, contract that provides the semblance of legality.149

146 Ibid. (wal-mumin lah urma ama).

147 148 149

Ibid., 12:195-98. Ibid., 12:195 (telling two versions of the storyanother about a woman in the marketplace).

As explained above in Chapter 4, all others reject Ab anfas view, including his two students Ab Ysuf and Shaybn, and those that follow their line of opinions. See Ibn azm, Muall, 12:195 (citing Ab Ysuf, Shaybn, Ab Thawr, hirs, Mliks, Shfis, and all others (sir al-ns) that prostitution is add-incurring zin). 366

Ibn azms response is to point out the incoherence and immorality of Ab anfas position that, in his view, is in stark contradiction to the communitys social mores: This position is one of the most anomalous opinions that Ibn azm claims ever to have come across, especially as Ab anfa requires a minimum of ten silver coins (dirhams) as dowry for a valid marriage. In essence, Ab anfa claims to follow Umar in voiding add liabilityhere for a few handfuls of dates as dowry for a purported marriagebut does not permit a couple to enter into an actual marriage for that same dowry. Ibn azm complains that as Ab anfa is selecting and rejecting Companion opinions to suit his own whims, and this makes a mockery [of the law].150 Moreover, to avoid add punishment for a paltry dowry but not allow people to get married except with a sizable one is providing incentives to commit zin;151 it is legalizing prohibited sex by prostitution, and placing obstacles in the way of legal sex by marriage. This policy also encourages fornicators to have sex in public by simply paying a woman a silver coin (dirham).152 Anyone who follows Ab anfa in this erroneous opinion contradicts both the Qurn and the Sunna, Ibn azm exclaims. Such people also adopt exactly the type of destructive taqld that he cautions against in general, because it too often merely results in following the whims of individual judges rather than the dictates of the law through the text. Instead, Ibn azm says (not discussing the issue of coercion-as-excuse that usually arises here), both parties deserved the add for zin. If anything, their crime was more serious than zin alone, not less so; with the addition of money into the equation, the two parties added the sin
150 Ibn azm, Muall, 12:198 (fa-hdh huwa l-istikhff aqqan).
151 152

Ibid. (a-l inna hdh huwa l-tarq il l-zin). Ibid. 367

of concluding an illegitimate financial transaction in attempts to justify their crime of zin.153 Thus, on the substance of the law, Ibn azm tries to make a case for going back to the original sense of Islams foundational texts. That, for him, is the only way to guard against judicial lawmaking based on whim that actually has the effect of contravening the values that the texts set forth, including social status and social mores concerning sexual ethics. In each case, the udd maxim plays no role. The deciding factors are the overriding principles of law that require strict subservience to divine legislative supremacy, including the requirement to impose udd punishments whenever they are proved in the courts and to interpret traditions outlining criminal liabilityonce authenticatedaccordingly. Shubha plays little role. 3. Knowledge and Certainty: Burdens of Proof An example of Ibn azms jurisprudence on issues where others find shubha is as follows.154 Where a man and a woman are found having sex and they claim to be married, should they be punished? anaf and Shfi jurists would apply the udd maxim to avoid punishment. Their basis? A adth where Al was said to have adjudicated just such a case. When the couple claimed to have been married, the report states that Al took their word and avoided imposing the add sanction.155 Jurists in favor of avoiding the add in such cases also cite the adth version of the udd maxim for support, hailing from the Prophet, they claim. And finally, these jurists make a rational argument comparing this scenario to one in which a man has sex with a
153 Ibid. (akl al-ml bil-bil [as condemned by Qurn, 2:188: wa-l takul amwlakum baynakum bil-bil ]).
154 155

For a full catalog of his rulings on common criminal law matters, see ibid., 12:164-218 (kitb al-udd). Ibid., 12:186 (fa-daraa anh). 368

slavewoman known to belong to someone else, but claims to have bought her and the actual owner affirms it, as does the slavewoman. In that case, jurists agree that no add punishment is due. By analogy to the claims of ownership as the legal basis that removes a suspect from add liability, for this group of jurists, no add punishment should apply when suspects claims to be married either. Other jurists dispute that view.156 Ibn azm says that these types of stark difference amongst jurists require investigation. He rejects the blanket opinions either for or against add imposition in favor of a third case-by-case approach. In particular, he argues that the opinion favoring udd avoidance should be readily dismissed for several reasons. First, it relies on the udd maxim, which Ibn azm has already demonstrated was apocryphal, and that it is impermissible to avoid udd sanctions or enforce them on the basis of claims that shubha, rather than certain evidence, exists.157 Second, the cases cited as precedent (where no one disputed the judgment) are decisions of Companions, which do not create binding precedent as they would had the same cases occurred in the presence of the Prophet. Finally, the case is factually distinct from the one involving the slavewoman. In that case, all parties affirmed that the sale took place, so the decision to accept the claim was on the bases of firm evidence and certain knowledge. In this scenario, if similar evidence was presented to prove the claims that a marriage had taken place, the decision similarly would be made on the basis of certain knowledge rather than speculation (ann). And that would be sufficient cause for any jurist to

156 See ibid., 12:186-87.

157

Ibid. 369

decide that there is no add liability, as only truth and certainty provide valid bases for legal decisions.158 In addition, Ibn azm noted that the opinions toward blanket rules of either udd imposition or avoidance fail to take into account the cultural context of the Arabs or the historical circumstances surrounding legal decisions during the early period. Namely, during the time of the Prophet, people used to emigrate to Medina in large waves from the farthest reaches of Yemen and other Arab lands together with their families and households, including free as well as slave-women and men. If found together, their claims that the women were wives or slavewomen belong to the accompanying man was accepted, and no one demanded that they produce evidence to prove it. This should be nothing surprising. All Muslims and indeed all people159 from the Prophets time until the present have agreed that this is quite a normal state of affairs; people continuously travel with their families, and no one asks them for evidence to prove the validity of their associations. This consensus is so universal, Ibn azm argues, that it should be regarded as an authoritative and binding text (na). His rule then is that whenever a couple is found together claiming to be married, their claim should be accepted, particularly if the two are foreigners or unknown to a particular community.160 Only in certain exceptional cases should a couple in this type of scenario be asked to produce evidence. For instance, if the couple is known in the community not to be married, further investigation beyond the mere claim is perhaps warranted. And
158 Ibid., 12:187.
159 160

Ibid., 12:188 (jam ahl al-Islam wa-jam ahl al-ar). Ibid. (gharbayn). 370

even then, if a woman is known to be unmarried, her claim is accepted if it is plausible,161 such that she will not be held add-eligible. Or if all parties affirm the marital relationship, as in the scenario where all parties affirmed the sale of the slavewoman, no add is due. If, however, another party produces solid evidence that the couple claiming to be married is lying, a judge should require the couple to produce evidence of their claim.162 Likewise, if a judge is certain that the couple is lying about their claims, add liability will apply mandatorily, with no room for add avoidance. 163 For Ibn azm, any evidentiary decision or question of fact then should be resolved on the basis of certain knowledge, just as questions of law. If doubts remain, there are two textual presumptions that should apply here. The first is that life is to be preserved,164 based on the adth cited above stating that your blood, property, honor, and lineage are sacred.165 The second is a jurisprudential principle that runs throughout Ibn azms law: that people should constantly be vigilant against making permissible what God has prohibited, in part, by avoiding making decisionsespecially on these serious affairs involving criminal sanctionsexcept on the basis of certainty.166 Just as those who are ignorant about the law should avoid acts that cause them to question whether they are acting lawfully,167 those ignorant about the whether
161 Ibid., 12:187 (in amkana).
162 Ibid., 12:187-88. Interestingly, he also holds that in cases of conflict of evidence, that is, where the man claims that they are married and the woman claims that she is his slavewoman, no add applies, because their testimony converges on the point of the validity of sexual relations (iat al-firsh), whether by marriage or the master-slave relationship. 163 164 165 166 167

Ibid. Ibid. (al: dimuhum wa-abshruhum [sic] al l-tarm). Ibid. For the Arabic, see above, note 145, and accompanying text. Ibn azm, Muall, 12:188 (bi-yaqn l shakka fh). Ibid., 12:60. 371

certain acts will incur add liability should abstain from any such acts. This stance rested on the overarching principle of precaution in udd and matters of life and death.168 But, as always, if the matter is clear, then the add is mandatory and an obligation set by God,169 which no one has the license to avoid.170 C. hir Doubt Jurisprudence In sum, for Ibn azm, in udd laws if the matter is clear, udd imposition is mandatory and one must never avoid it. But if there is a doubt as to whether the add is due or not, then it is best not to impose it.171 Here, Ibn azm has placed the burden of proof on those who would challenge the apparent facts of the case. But ever concerned with textualand thus certainbases for his conclusions, he points to a broad historical precedent to argue that the Prophet affirmed this practiceby not asking people to produce evidence of a valid relationship when they travel together. Like Sh traditionists, he has adopted a principle of precaution, but unlike them, he has combined it with a textual rule that borders on the acceptance of a general presumption of permissibility, at least in these cases where he can point to historical and cultural practices that he maintains the Prophet tacitly affirmed. Thus, unlike Sh traditionists, his textualist orientation translates into precaution by avoiding ambiguity and udd sanctions in cases of doubt.

168 Ibid., 12:60-61 (wa-man jahila a-wajaba l-add am lam yajib fa-faruh an l yuqmuh li-anna al-ar waldim arm).
169 170 171

Ibid., 12:61 (far). Ibid. Ibid. 372

IV. Conclusion

The forgoing discussion shows that even the opposition to udd avoidance and the udd maxim amongst the anbal and hir traditionist-textualists was qualified. anbals spanned the spectrum from almost wholesale acceptance to rejection of the maxim. hirs were more purely in the camp of rejecting it. Yet to the extent that they rejected the maxim, both sides found alternative mechanisms for udd avoidance. The anbal jurist Ibn al-Qayyim recognized that cases of necessity, duress, and other defects to full criminal culpability tilted the balance toward udd avoidance, as did the hir Ibn azm in different terms. Their rejection of the maxim thus had less to do with the practice than with what they saw as its atextualist basis and the fluid approach to law and legal interpretation that its formulation seemed to suggest. If the Prophet did not utter the maxim, and many held that he did not, then to suggest that judges should avoid udd sanctions in cases of doubt was to put much too much discretion in the hands of judges and jurists who were charged with faithfully implementing the law on the basis of traditions, not with introducing their own views about the contours and concept of shubha through exercising discretion. If udd punishments were to be avoidedas the foundational texts certainly suggested they should be at timesit should be based, the textualists maintained, not on maxims but on the texts of tradition.

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CHAPTER 6 Sh Duels over Theology and Interpretive Philosophies of Law: Textualism vs. Pragmatism, Traditionism vs. Rationalism
I.

Introduction Recall that the 17th century textualist-traditionist jurists of the Sh school of

law, Muammad Amn al-Astarbd, took an oppositional stance to the udd maxim similar to that of Ibn azm. He saw substantive maxims, which he called rational presumptions, as a means to subordinate revelation to reason rather than vice-versa. He required maxims to have textual bases if they were to be valid; that is, revelatory texts were to provide the sole source of law, such that maxims were only valid if rooted in those texts.1 The udd maxim was only acceptable, he argued, because it appeared as a adth text in Sh laws canonical sources.2 Again, like Scalia, Astarbdan textualists found that antiquity rendered into text justified the maxim, but unlike Scalia, that did not translate into wide application of it. This chapter examines the Sh support for and opposition to the udd maxim with an eye to the rationales and presuppositions do jurists draw on to justify the positions they have assumed vis--vis legal maxims. This survey reveals that the conflict is often informed by theological presuppositions about the nature of law and legal authority to interpret texts and resolve doubts. Accordingly, the debate over the udd maxim often has more to do with contextual policies and highlights moraltheological presuppositions driving divergent understandings of law and of doubt.
1 Muammad Amn al-Astarbd, al-Fawid al-Madaniyya (n.p.: Dr al-Nashr li-Ahl al-Bayt, [198-?], 106.
2 See al-urr al-mil, al-Ful al-muhimma, 388; cf. idem, Wasil al-Sha (Qum: Muassasat l al-Bayt liIy al-Turth, 1409/1988-9), 28:48, no. 34,179 (quoting the maxim from Ibn Bbawayhs Faqh).

374

II. Sh Debates: Rationalists vs. Traditionalists (Uls vs. Akhbrs)

A. The Battlefield: Theological-Legal Debates 1. The udd Maxim and Presumptions of Law Consider a hypothetical scenario of situations that affect the scope of the udd maxim in a courtroom. So far as a defendant is concerned, for best results, the udd maxim should rest on a presumption of innocence or non-liability. With such a presumption, any ambiguity in criminal laws can translate directly into the types of doubts and ambiguities (shubaht) that avert udd liability. In other words, a presumption of this type coupled with a lenity-like rule3 gives form to the familiar ruleof-law principle known in civil law contexts as the principle of legality: that individuals cannot be punished without a clear statement of law and unassailable evidence of criminal violation. In short, the udd maxim would have a wide scope of application if an innocence or non-liability presumption was present to accommodate a robust principle of legality. By contrast, rejection of an innocence or non-liability presumption would severely restrict the scope of the udd maxim, if not dispense with it altogether. A rule requiring individuals to approach all questionable acts with extreme caution would obviate the need for a robust conception of ambiguity in the law altogether;
3 Originally, lenity was a catch-all term referring to judicial avoidance of harsh criminal sanctions through strategies both questioning the clarity of the substance of the law (now regarded as the American rule of lenity proper, for a definition of which see United States v. Bass, 404 U.S. 336, 347-49 (1971)) and identifying or entertaining doubts as to the evidence (now regarded as the reasonable doubt standard). Like the old concept of lenity, shubha refers to both substantive textual ambiguities and evidentiary doubts. On the history of lenity, see Langbein, Adversary Criminal Trial, 334-36 (on lenity as a tool attacking the substance of the law or construing the facts to fall outside of the scope of the text); cf. Whitman, Reasonable Doubt, 123 (discussing the emergence of the reasonable doubt doctrine in England and Continental Europewhere the principle required deciding in favor of the defendant in cases of doubt: in dubio pro reo). 375

requiring people to always ask for explicit authorization before performing any act would mean that judges need not entertain the notion that ambiguities as to the meaning or scope of the law could play a role in determinations of criminal culpability. Instead, such a precaution principle would require anyone who is unsure about the legality of certain acts and who has not received specific authorization, to simply avoid them for fear that the acts might be illegal. In the courtroom, this principle would force those accused of committing crimes to prove their innocence by arguing some wellfounded mistake, reduced capacity, or other mitigating fact. The judge would assess these factual claims for plausibility on a case-by-case basis, and it is only in this realm of factual or evidentiary doubts that the udd maxim would have room for maneuver, if it is to apply at all. In sum, without a presumption of innocence or non-liability or a robust conception of ambiguity that would provide guidance concerning questionable acts, shubha has little role to play in interpretations or applications of udd laws. But the question was, what was the juristic conception of ambiguity and why? In contemporary writings, discussions like these about criminal liability in the face of ambiguity are typically framed in terms of the courtroom. But the scope is much broader. In classical Islamic law, presumptions about criminal liability arise long before a judge or defendant faces issues of evidentiary standards and burdens of proof. The background context driving discussions of ambiguity goes to the very nature of the link between law and morality, and they are inextricably intertwined with questions of interpretive authority. In a legal system that designates a sole divine Lawgiver, does God dictate law through revelation or may reason determine laws content and scope? Does law

376

correspond to a theistic subjective ideal of morality, where Gods rules of revelation distinguish right from wrong in ways mere human reason cannot always comprehend? Or does law align to a theistic objective ideal of morality, wherein reason can discern the same right from wrong articulated in revelation? Relatedly, does revelation constitute the sole authorization for human acts with an all-encompassing jurisdiction, or can reason help determine and adjust the law contained in revelation to cover unspecified contingencies and address changes in time, place, and circumstance? Through these questions runs a common theme involving the role of reason versus revelation when it comes to addressing areas of inevitable doubt present in legal texts. After revelation, all Muslims agreed that humans were obliged to obey God through following His will as expressed in divine law. The question was whether and how one could know the lawexclusively through revelation or by the operation of reason as well? Divergent answers fueled the most vehement debates between Sunns and Sha and between rationally minded and traditionally minded jurists in each camp. As each group placed a different emphasis on the scope of reason in revelation, answers to these questions became the dividing lines between various strands of law and traced the contours of ambiguity and doubt. 2. Interpretive Authority: Revelation and Reason Sh jurisprudence went through several successive stages that pitted rationalists against traditionalists in debates about the meaning and scope of the law.4
4 For a full overview identifying eight stages or periods of Sh legal history, see Hossein Modarressi, Introduction to Sh Law (London: Ithaca Press, 1984), 23-58. For standard works detailing the differences between rationalists (Uls) and traditionalists (Akhbrs), see Abd Allh b. li al-Samhij , Munyat almumrisn, quoted and abridged in Muammad Bqir b. Zayn al-bidn al-Khwansr, Rawt al-jannt, eds. M. T. al-Kashf and A. Ismliyyn (Tehran; Qum: n.p., 1390-2), 1:120-30; cf. Andrew Newman, The Nature of the Akhbr/Ul Dispute in Late afawid Iran, Part I: Abd Allh al-Samhijs Munyat al377

The division began as a matter of theology, but those matters were always intimately connected with the law. Theology was worldview. It drove the interpretive philosophy of law. Rationalists contemplated a role for reason in legal interpretation, by which they meant both pure and practical reason.5 This translated into a pragmatic jurisprudence wherein, as I will argue, legal maximsas both interpretive and substantive principlesgradually came to loom large.6 Traditionists, on the other hand, sought to banish all human discretion from a legal system that was supposed to be divine. Hewing closely to the words of the revelatory texts, they advocated a textualist jurisprudence, which accommodated maxims only of the limiting type mostly the grammatical and linguistic interpretive canons. Substantive legal maxims based on rational precepts, they thought, could be unwieldy and arbitrary weapons in the hands of power-hungry or willful jurists. That is, juridical discretion in legal interpretation through such maxims threatened to introduce broad human interventions in the realm of Law, in which Muslim jurists owed full deference to God. Eventually, the rationalists won, in that their rationalist-pragmatism became the dominant interpretive school of Sh law. But this triumph was relatively recent,
mumrisn, Bulletin of the School of Oriental and African Studies 55,1 (1992): 22-51, 24-51 (reproducing and translating Samhjs version detailing 40 differences) and Part II, Bulletin 55,2 (1992): 250-61 (discussing the differences). See also Muammad b. Faraj Allh al-Dizfl, Frq al-aqq f l-farq bayn al-Uliyyn walAkhbriyyn, on the margins of al-Kshif al-Ghi, al-aqq al-mubn ([Tehran]: n.p., 1319/[1901], 2-97 (detailing 86 differences). For additional sources, see the bibliography of difference lists between Akhbrs and Uls in Robert Gleave, Scripturalist Islam: The History and Doctrines of the Akhbr Sh School (Leiden et al.: Brill, 2007), 311-14. See Modarressi, Introduction, 3-4 note 1 (noting that by reason, rationalists referred to the categorical judgments of both pure and practical reason, for instance, the judgment of practical reason that justice is good and injustice is evil). For brief definitions of types of reason, see Donald M. Borchert, ed., Encyclopedia of Philosophy, art. Practical Reason, 2nd ed. (Detroit: Macmillan Reference USA, 2006), 7:73538; ibid., art. Reason, 8:279-82.
6 5

For an analysis of pragmatic jurisprudence and legal maxims in American law, see William N. Eskridge, Jr. and Philip P. Frickey, Statutory Interpretation as Practical Reasoning, Stanford Law Review 42 (1990): 321-84. 378

marked only since the 19th century. Before that, the rationalists and traditionalists struggled to define theories of interpretive authority and to account for ambiguity in the law. Our story begins with contests between the two camps in the 4th/10th century, when mainstream theological doctrine for Twelver Shsm settled on traditionist bases. One pivotal moment of that period takes us to Baghdad, where Sh scholars break out of this traditionist framework and march persistently on a path of rationalism until displaced in the 10th/16th century by a new traditionism. Throughout Sh legal history, battles over interpretive authority to resolve doubts and over the very existence of ambiguity occur within the framework of the skirmishes over the role of reason in revelation. At bottom, these were all arguments for and against legal maxims that spanned areas of both jurisprudence (ul al-fiqh) and substantive law (fiqh); were maxims rational gap-filling tools for articulating text-based legal norms where the text itself ran out; or were they textualist canons of construction for a theory of law wherein the text never ran out? Theological worldviews about the concept of justice and morality in the law lay the groundwork for the jurists differing answers to these questions. The following discussion traces these debates, mainly with an eye to following questions about the scope and validity of legal maxims generally and the udd maxim in particular. As we will see, the debates were articulated through meta-principles applied to situations of ambiguity and doubt a presumption of innocence or non-liability, invoked by rationalistpragmatists, versus a principle of precaution, emphasized by traditionist-textualists. * * *

379

Before delving into those debates, a note about the name of the presumption is in order. Until now, I have been using innocence or non-liability to capture the sense of the presumption in classical Islamic, which differs from the comparable common law presumption. At common law and in American law, we are accustomed to referring to a presumption of innocence, which requires those deciding on a criminal accusation not to make any inferences about guilt despite the circumstantial evidence presented against a defendant in a courtroom; in other words, the law regards a person as legally innocent until proven guilty.7 This presumption does not make a judgment on the actual innocence of a criminal defendant; it only means that the law requires that determinations of guilt accompanied by criminal consequences rely on a high standard of proof: what has come to be known as proof beyond a reasonable doubt.8 Islamic law uses the term bara, which literally means non-liability or exemption, to refer to the status of a legal agent in both matters concerning legal duties and in criminal law. The Islamic legal term is broader in that it goes to more than just criminal liability to cover acts of both omission and commission for which
7 This presumption is seen to stem from the Roman legal maxim initially governing private disputes that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies). See George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, Yale Law Journal 77 (1968): 880-935, 895 (citing Paul, Lib. LXIX Ad Edictum; Justinian, Digest 22.3.2); cf., e.g., Patterson v. Gaines, 47 U.S. 550, 597 (1848) (citing the maxim in a private law context). For the early incorporation of the presumption into American criminal law, see Coffin v. United States, 156 U.S. 432, 453 (The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of our administration of criminal law.). See In re Winship, 397 U.S. 358, 362, 363 (1970) ([I]t has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required [as] a safeguard of due process of law . The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. The standard provides concrete substance for the presumption of innocencethat bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.) (citing, inter alia, Coffin v. United States, 156 U.S. 432, 453 (1895)). Notably, the common law presumption of innocence developed separately from the reasonable doubt standard, but In re Winship, joined them as inextricable requirements of the criminal trial. For discussion, see Fletcher, Legal Rules, 880 note 2. For a history of the origins and theological roots of this American legal doctrine in common law, see Whitman, Reasonable Doubt. 380
8

there are legal consequences. In the criminal context, non-liability refers to acts of commissionthat is, instances where a legal agent is not criminally liable for committing acts of wrong doing; and exemption refers to acts of omissionthat is, situations where a legal agent is not criminally liable for rejecting a core obligation like prayer (which can be prosecuted as a crime of apostasy). At the legislative level, the presumption of non-liability or exemption means that the law does not impose on legal agents certain duties absent a clear statement of law, or else the lack of a clear statement may absolve an agent of liability. In a courtroom, the presumption means that the a judge may not infer criminal liability absent a certain standard of proof: evidence devoid of shubha (doubt).9 The existence and definition of liability-removing shubha was the matter of debate at issue in this study. As in American law, the Islamic law presumption does not always refer to actual (or otherworldly) status of the offender, recognizing that a defendant can be found legally innocent but liable before God; in both context, the aim is legal truth rather than factual truth. That said, innocence (or an innocence presumption) does not completely capture the related Islamic notion of udd liability surrounding issues of legislative clarity, interpretation, and application to both duties and criminal violations. Nevertheless, drawing on the shorthand usage in American law, I use it with these caveats in mind (discussed in the text) as shorthand to refer to the legal status of the defendant. * * *

9 This also came with and was accomplished through certain evidentiary standards and burdens of proof, as in American law. The basic expression of the presumption in procedural terms was an Islamic legal maxims that paralleled the Latin one discussed above, note 7: al-bayyina al l-mudda wal-yamn al lmudda alayh/munkar (the burden of proof rests on the one who asserts and an oath on the one who denies). 381

Until the 4th/10th century, the Alid community could plausibly claim that the Immswho provided religious leadership after the Prophet Muammads death in the 1st/7th centurywere present and that moral-legal guidance passed from God to the community through them. Accordingly, there was a strong basis for claims that the Imms enjoyed exclusive authority over promulgating or explicating the law. To be sure, there were vibrant debates about the scope of interpretive authority among separate strands of rationalism and traditionalism even when the Imms were alive. Early rationalists insisted that the Imms encouraged rational deliberation on general precepts of law to lead to the particular details. Early traditionalists, however, were adamant that adherence to religious law meant complete subservience to revelation, as contained in the Qurn and the traditions (adth) collecting divinely inspired instructions from the Prophet and the Imms.10 In practice, both camps exercised significant discretion in interpretation, but traditionalists shrouded their interventions by quoting reports from the Imms. Nevertheless, the traditionalist approach was more salient theoretically, because its exponents could claim that, so long as there was an Imm who was still alive and present, they were merely deferring to him. Thus, traditionists, at first a minority, gradually gained ascendancy over competing rationalist strands in the first few centuries of Sh thought.11 After the Imms disappeared, the community was thrown into crisis. The eleventh Imm had died in the mid-3rd/9th century andin what became the mainstream Imm viewhad left behind an infant son who did not interact with the
10 On rationalist, traditionalist, and intermediate tendencies in the 2nd/8th through early 4th/10th centuries, see Modarressi, Introduction, 26-35.
11

See ibid., 27-29. 382

Alid community directly. Nonetheless, the community continued to receive guidance through a series of his representatives during a period dubbed this twelfth Imms Minor Occultation. But the Imms continued absence was trying. At the turn of the 3rd/9th century, traditionist scholars addressed the situation by articulating a doctrine of leadership that found support in the traditions for a theory of twelve Imms, the final one being the millennial figure of the mahd (known in Sunn traditions) or qim (familiar in Sh traditions) who would establish truth and justice in the world in the End Days; until then, he would remain hidden, in Major Occultation.12 One of the scholars who helped resolve the crisis in theological doctrine was Muammad b. Yaqb al-Kulayn, author of the first of the Sh canonical adth collections, Ul al-kf. In this work, he marshaled traditionist evidence for Twelver Sh positions of creed and law in attempts to document guidance from the Imms and to head off attempts of local rationalists to appeal to unguided reason.13 One tradition supported the notion of a hidden and final Imm and formed the basis of the now-settled mainstream Sh
12 For a discussion, see Modarressi, Crisis, 92-98, 101-02. (discussing the four agents of the 11th and 12th Immthe last one, being Al b. Muammad al-Sammarr (d. 329/941), who died without naming a successor), 97-98 (on the effects of the continuing absence), 101-02 (It was, possibly, not until after 295/908, when the community started to realize that the situation was more unusual than they had originally thought and that possibly there would not be a manifest Imm for the foreseeable future, that the question of the number of Imams came under serious consideration .). See Muammad b. Yaqb al-Kulayn (d. 329/940-1), Ul al-kf (Tehran: Dr al-Uswa, 1418/[1997-8]). Kulayn compiled the work just after he arrived at the turn of the century from traditionist circles in Qum to Baghdad, where he had to compete with rationalist tendencies in the Sh community. For analyses, see Abd al-asan al-Ghaffr, al-Kulayn wal-Kf (Qum: Muassasat al-Nashr al-Islm al-Tbia liJamat al-Mudarrisn, 1416/[1995-6]). The Nawbakht family comprised prominent Sh rationalists from approximately the mid-3rd/9th century; the two most prominent members were Ab Sahl b. Nawbakht (d. 311/923-4) and his nephew Ab Muammad al-asan b. Ms al-Nawbakht (d. between 300/912 and 316/923). For more on the Nawbakht family and prominent rationalist jurist-theologians amongst them, see Martin McDermott, Theology of al-Shaikh al-Mufd (d. 413/1022) (Beirut: Dr al-Mashriq; Librairie orientale, 1978), 22-24; see also Abbs Iqbl, Khnadn-i Nawbakht, 2nd ed., (Tehran: Kitbkhnah-i ahr, 1966), available in Arabic translation: Al Hshim al-Asad, trans., l Nawbakht (Mashhad: Majma al-Buth al-Islmiyya, 1383/[2004]); L. Massignon, La Passion dal-usayn ibn Mansour al-allj, martyr, mystique de lIslam (Paris: Geuthner, 1927), 142-51. For a study of Ibn Qiba, a prominent rationalist theologian from the same period, see Modarressi, Introduction, Part II. 383
13

doctrine of the hidden Twelfth Imm. This doctrine resolved the religious doubts (also called shubaht) over whether God would continue to guide the community through the Imms.14 But for legal matters, the community needed a whole new theory of law and leadership to handle the total absence of the Imm and of direct access to his guidancefor all practical purposesuntil the end of times. To be sure, law and theology were two sides of the same coin, and not nearly as separate as later scholars would perceive them; yet, concerns of legal practice had immediate consequences even after the theological questions were resolved. The crisis would have particularly acute ramifications in the criminal law context. udd laws were such that only divine authority could sanction their definition, interpretation, and implementation.15 But the only Imm exercising political authority to preside over udd laws was the first, Al b. Ab lib (d. 41/661). The other Imms, while alive, were watched closely by the majority who rejected their claims to religious or political authority. Thus, early on, questions arose about whether their followers could work for illegitimate or unjust rulers who did not recognize the Imms authority and thus did not follow their guidance on criminal or other laws. Scholars during the period of occultation addressed these questions on the basis of traditions reporting that the Imms had earlier given permission to Sh adherents to

14 Each found a few traditions in support of that doctrine, and subsequent scholars found many more and authored entire monographs on the subject. See Modarressi, Crisis, 102 (outlining how Kulayn and other traditionists helped consolidate the crisis of leadership) (citing Kulayn, Kf and Al b. Bbawayhfather of the better-known Ibn Bbawayh discussed below), al-Imma wal-tabira, and other monographs on the occultation (ghayba)).
15

See, e.g., Dmd, Qavid, 4:54; see also Ab Jafar al-s, Uddat al-ul (Tehran, 1314/1896-7); al-Allma al-ill, Mabdi al-wul il ilm ul (Qum, 1404/1985). Cf. Mward, w, 1:100-01. 384

work with non-Sh governments in specific cases.16 These questions continued during the Imms absence, but now, the Imm was not available to give specific permission. This complicated the picture about how the Sh minority could relate to the Sunn majority generally, and what turns udd and others laws would take now that traditionists could no longer claim to rely on the Imms directives.17 As Madelung has explained, [s]ince the Imm could no longer be asked personally for permission to take up a post, the need to lay down generally applicable rules on the basis of the earlier dicta of the Imms no doubt came to be felt more pressingly, as also happened in other areas of the law.18 Leadership had devolved onto the scholarly community to work out these precepts, which, in criminal law, went in two different directions. One approachfollowing the old rationalist tendencywas to hold that the community could continue to follow the Imms guidance through elaborating general principles of law, often in the form of legal maxims. In this vein, as I will argue, rationalist-pragmatist jurists claimed that the udd maxim was a prime example of a general precept that provided general guidance on resolving doubts and ambiguities. The general thrust of the maxim would lead jurists to conclude that there was no culpability for violating criminal laws that were only of ambiguous import or for criminal acts established on doubtful evidentiary or procedural bases. Rationalist
16 Wilferd Madelung, A Treatise of the Sharf al-Murta on the Legality of Working for the Government (Masala f l-amal maa l- suln), Bulletin of the School of Oriental and African Studies 43, (1980): 18-31, 18 (noting that this question arose in the first century, as Imms worked for the Umayyad and early Abbsid dynasties, and referencing traditions of the sixth and seventh Imms giving permission in specific cases on the basis that the government workers could help support and defend the interests of the Imm and the Ald community). See Wilferd Madelung, Authority in Twelver Shiism in the Absence of the Imm, in G. Makdisi et al. eds., La notion dauthorit au Moyen ge: Islam, Byzance, Occident, Colloques internationaux de la Napoule 1978 (Paris 1982), 163-73, 168; idem, Legality of Working for the Government, 18-31.
18 17

Madelung, Legality of Working for the Government, 20. 385

jurists from the Islamic laws professional period point to several early precedents from the time of Al and the other Imms to support this move: the story of Als pardon of a man falsely accused of murder,19 situations where people committed prohibited acts out of ignorance of the law or the facts20 and, more generally, cases where the law itself was unclear.21 For them, it seems that all of these instances are examples of the udd maxim in action. Another approachfollowing the old traditionalist tendencieswas to hold that, in the Imms absence, his followers were to avoid committing prohibited acts by avoiding all acts that the law potentially circumscribes, even though the actual laws may be unknown because of the lack of access to the Imm. That is, a conservative brand of textualism, where individuals and jurists alike opted to avoid potential prohibitions, was the safest bet. This is a theory that traditionists began working out in opposition to the rationalist derivations of law from general principles contained within the traditions of the Imms. The udd maxim would be anathema to them unless sanctioned by tradition and, even then, it was likely of limited scope because of the general thrust of a traditionist legal theory that both required absolute certainty in the lawdefined as clear textual statementsand maintained that there was a law to cover every act. Moves toward developed (and oppositional) rationalist and traditionist

19 See Chapter 1, note 2 and accompanying text. For other examples, see Qay Al, 43-45, 185 (citing Kulayn, Kf; s, Tahdhb al-akm), 52 (citing Wak, Akhbr al-qut [story of hermaphrodite]; Q Numn, Daim; Ibn Bbawayh, Faqh; Mufd, Irshd; s, Tahdhb al-Akm), 76 (citing Kulayn, Kf; s, Tahdhb al-akm), 80, 85, 233, 236 (Barq, Masin; Kulayn, Kf; Ibn Bbawayh, Faqh; s, Tahdhb alakm); 139, 189.
20 21

E.g., Ibn Idrs, Sarir, 4:438. See, e.g., Lankarn, Qawid, 21 (describing shubaht ukmiyya); Dmd, Qavid, 4:54-61 (same). 386

theories of law advanced in the 4th century, where our story takes a significant turn and leaps forward. Most of the debate turned on just what the acceptable general precepts were and whether they presumed innocence to accommodate ambiguity or required precaution to avoid it. A prominent 4th/10th-century traditionist, Ibn Bbawayh, threw down the gauntlet, but it was unclear whether it was for the traditionists or rationalists to pick it up. Both camps claimed him. 3. Ibn Bbawayh & Traditionist Foundations: Presumption of Innocence? The main battleground for the rationalist-traditionalist duel centers on Ibn Bbawayhs citation of a report from the sixth Imm, Jafar al-diq, that everything is permissible (mulaq) unless specifically prohibited.22 The quote does not come from a jurist committed to an expansive rationalist notion of governing by general precepts of law. Instead, Ibn Bbawayh (d. 381/991) was a pillar of Imm Shism and a prominent opponent of rationalism who gained significant political support to amplify his traditionist ideals. He operated during a time when Sh activity flourished both in the center of the Islamic empire and farther east. Under the patronage of the Byid dynasty, which was itself loosely Sh (specifically, Zayd), Baghdad and Qum had become two major centers of Sh learning, and Sh scholarship flourished with generous political support.23 While Ibn Bbawayh was teaching in Baghdad, the reigning Byid prince,
22 Ibn Bbawayh (d. 381/991-2), al-Itiqdt f dn al-Immiyya, ed. Ghulm Ri al-Mzandarn (Qum: G.R. al- Mzandarn, 1412/[1992]), 8-9; see also idem, Kitb man l yauruhu l-faqh, ed. Al Akbar al-Ghaffr (Qum: Jamat al-Mudarrisn f l-awza al-Ilmiyya, 1994), 1:202.
23

The sources indicate that the Buyids were originally Zayd, see McDermott, Theology, 12, but that in any case their Sh identity was loose, Mottahedeh, Loyalty and Leadership, 28. 387

Rukn al-Dawla, invited the scholar to the Persian capital Rayy (near modern day Tehran), provided him with financial support, and encouraged him to counter the rationalist theologians gaining currency there. Even without external encouragement, and despite his outspoken stance against speculative theology, it was in Ibn Bbawayhs interest to engage the rationalists in order to defend against the rising support for them in scholarly circles; for their ideas sat squarely against his traditionist orientation.24 Ibn Bbawayhs strategy was to insist on core traditionist views of God and the world, drawn from reports from the Imms with a minimal amount of interpretation. He held that revelation aloneas articulated through the Qurn and traditions of the Prophet and the Immswas sufficient to govern human affairs. Reason was instrumental for arriving at knowledge of the existence of God and the obligation to follow His revealed dictates. But beyond that, both theology and law were to be understood on the basis of the traditions, which offered all-encompassing explications of revelation to cover every necessary contingency.25 In that vein, he wrote two works of theology, Kitb al-Tawd26 and Itiqdt,27 in which he defended the basic doctrines of the Imm creed against Mutazils and other

24 Ibn Bbawayhs influence was by no means exclusive. A few years before his arrival, in 367/978, the Byid Mutazil vizier, al-ib b. Abbd, had invited to the Court the leading Mutazil theologian from Baghdad, Q Abd al-Jabbr, who was one rationalist foil to Ibn Bbawayhs traditionism. The viziers gradual restrictions on Ibn Bbawayhs teachings, together with the rise of the rationalists at Baghdad beginning with Mufd and al-Sharf al-Murta, circumscribed the traditionist influence. On al-ib Ibn Abbds persecution of Ibn Bbawayh, see Wilferd Madelung, Immism and Mutazilite Theology, in Le Shisme Immite, ed. T. Fahd (Paris: Presses Universitaires de France, 1979), 17-20 [reprinted in W. Madelung, Religious Schools and Sects in Medieval Islam (London 1985), no. VII]; McDermott, Theology, 13 note 8.
25 26

See Madelung, Immism and Mutazilite Theology, 17-20. Ibn Bbawayh, Kitb al-Tawd, ed. Hshim al-usayn (Tehran: Maktabat al-adq, 1387). 388

rationalist detractors.28 In his refutations and discussions about the scope of the law, Ibn Bbawayh was typically minimalistgenerally providing quotations of traditions without comment. It is in this minimalist framework that he quoted a statement attributed to Jafar al-diq that everything is permissible unless specifically prohibited.29 With this citation, he meant to refute the Mutazil notion of objective morality: that reason can discern moral good and evil, such that people can fairly be held legally and morally accountable for their acts whether or not they had access to revelation (that is, both before and after revelation). Relatedly, he responded to a core Mutazil principle against holding individuals accountable for acts that were not within their capacity to rationally know and thus apply (adam taklf m l yuq). He again merely quoted the Qurnic verse stating that God does not place a burden on any soul greater than it has strength to bear (2:286) and another report from Jafar aldiq, that I swear by God, God has not burdened His servants (humankind), save to a lesser extent than their capacity.30 As we will see, these quotations of scripture and tradition without comment opened up room for myriad interpretations. Rationalists and traditionists would debate whether the law, based on these premises, really
27 Idem, Itiqdt (cited above, note 22); English translation: A Shiite Creed: A Translation of Rislatu litiqdt, trans. Asaf A. A. Fyzee (London, Oxford University Press, 1942). Cf. Asaf. A. A. Fyzee, The Creed of Ibn Bbawayhi, Journal of Bombay University 12 (1943), 70-86 (examining his creed and comparing it with the commentary and correction, Ta al-Itiqdt, by Mufd).
28

For contrasts between Ibn Bbawayhs creed and Mutazil notions of Gods oneness and His justice, see McDermott, Theology, 347-49. For the standard work outlining the five tenets of the (Baran) Mutazil tradition, see Mankdm Shashdw (d. 425/1034), Talq [al] shar al-Ul al-khamsa, ed. Abd al-Karm Uthmn (Cairo: Maktabat Wahba, 1965) (published as Abd al-Jabbr b. Amad (d. 415/1025), Shar al-ul al-khamsa, as clarified by D. Gimaret in Les ul al-amsa du Q Abd al-Gabbr et leurs commentaires, Annales Islamologiques 15 (1979), 47-96, 49). For standard treatments of Mutazil theology and history, see Tilman Nagel, Geschichte der islamischen Theologie (Eng. Trans.: The History of Islamic Theology), trans. Thomas Thornton (Princeton, NJ: Markus Wiener Publishers, 2000); van Ess, Theologie und Gesellschaft. Ibn Bbawayh, Itiqdt, 8-9. Ibid., 9. 389

29 30

accommodated a general presumption of innocence in cases of ambiguity or whether these traditions had altogether different implications for the law and legal process. A major part of the problem was that the reader could not be sure whether Ibn Bbawayhs quotations were to be taken as descriptive statements about how God has created the world and human beings or if they should be taken as having normative implications about how much license human beings should take in interacting with the world. Further, if Ibn Bbawayh were going to rely on a traditionist theory of theology and law, he needed some mechanism to deal with conflicts between traditions, which were readily observable in existing collections of his time.31 Recognizing this, he placed a premium on adth-authenticity. He stated that traditions could never conflict with the Qurn, which was of unquestionable authenticity; moreover, as divinely inspired rulings, authentic traditions would accord with the Qurn because they came from the same source, and a single omnipotent and just divine Author would not issue conflicting rulings. Having affirmed this premise, Ibn Bbawayh acknowledged that reports sometimes appear to conflict with one another and identified plausible reasons why. Issues of authenticity were the main culprits, as some traditions might result from imprecise narrations or even forgeries. But if authentic, when traditions were juxtaposed, any apparent divergences amongst traditions could be explained upon some reflection: two traditions might simply provide alternate ways of satisfying a single obligation; they might offer instructions for successive stages; or they might provide

31 See also Etan Kohlberg, Al-Ul al-Arbaumia, Jerusalem Studies in Arabic and Islam 10, (1987): 128-66 (identifying some of the 400 or so notebooks (each conventionally called kitb or al, pl. ul) purportedly recording the Imms sayings). For a review and bibliography of the written literature of the first three centuries, see Modarressi, Tradition and Survival. 390

rules to be applied only when certain conditions were met.32 It appears that his statement against the existence of textual conflicts was more normative than descriptive, that is, an assertion of fact that was a necessary presumption if the law was to cohere. To avoid the specter of incoherence through conflicting reports, scholars were advised, in the first instance, to identify and appeal to reports of unassailable authenticity. His work on law was intended to facilitate just that. In what would become a central Sh work, Man l yauruhu l-faqh, Ibn Bbawayh collected what he deemed to be the core authentic reports of Imm law. Unlike his predecessor Kulayn, Ibn Bbawayh was selective, presenting only the core traditions for law. As he explains in the introduction of his work, and as its title suggests, he intended through this book to provide the essential elements of religiolegal doctrine in a handy format for the person in need of a legal rule but without a jurist to ask.33 The very structure of the book is telling: it is a compilation of reports attributed to the Prophet and the Imms organized by legal subject matter. Through it, he was attempting to demonstrate the supreme authority and sufficiency of reports transmitted by reliable narratorsas the primary sources of law alongside the Qurn. * * *

Pro-traditionist and atheological, Ibn Bbawayh and his work came at a pivotal moment in Sh history. The community was just emerging from a severe crisis of leadership. Recall that the eleventh Imm had died a century earlier, and Ibn
32 See Ibn Bbawayh, Itiqdt, 59-63 (on the Qurn), 91-102 (on traditions). A more problematic cause of difference that Ibn Bbawayh suggests here and that cannot be countered by simply emphasizing authenticity, is dissimulation (taqiyya), by which the Imms did not always make known the right answers to legal questions.
33

Idem, Faqh (Introduction, drawing on the idea of a similar work, called Man l yaduruhu l-abb, offering solid stop-gap medical procedures for those who find themselves without a doctor). 391

Bbawayhs traditionist predecessor Kulayn had appealed to traditions to resolve the theological leadership conundrum facing the community. But the traditionists had not adequately addressed the question of leadership in law. The lingering question was: who would provide ongoing leadership to the community in practical affairs and everyday matters of law? It was Ibn Bbawayh who devised a convincing answer, at least for the short term, during the period of traditionisms ascendancy in the 4th/10th and 5th/11th centuries. Ostensibly, the Imm was to lead. But how would he communicate? Already, his agents had appealed to scholars of their time to resolve questions of law. And earlier, rationalist scholars had argued that the Imms instructed jurist-theologians to elaborate the details of the law based on the general principles contained in the Qurn and Sunna.34 However, traditionists like Ibn Bbawayh saw any delegation of interpretive authority to the jurists as an incursion into absolute divine or immic authority over the community.35 He employed traditions creatively to invalidate the very arguments that the rationalists advanced. By using textual bases that both camps deemed authoritative, he sought to ensure the supremacy of divine revelation and subordination of human discretion. The attempt was by and large successful in the Sh community. Through it, Ibn Bbawayh managed to bolster Shisms earlier traditionist tendencies, and the influence of his teachings and works was extensive (though toward the end of his life,

34 See Modarressi, Crisis, 92-98.

35

Ibn Bbawayh grew up on the doctrine of the immate and the importance of relying on traditions for divine guidance; he came to intellectual maturity under the tutelage of his father and other traditionist scholars in Qum and Rayy. See A.A.A. Fyzee, art. Ibn Bbawayh, EI2, 3:726. 392

already Mufd was actively promoting a more rationalist approach).36 Ibn Bbawayhs Faqh stands to this day as one of the four canonical Sh works of adthand therefore a central source of law;37 all subsequent works of law and adth regularly appeal to his formulations in that work (though, as we will see, not always in the way he intended). It turns out that the traditions were accepted as authentic, but what the texts meant was a matter of interpretation. B. Rationalist Thrust: Presumed Innocence and Legality Ibn Bbawayhs influence was strong for his time, but limited, as the next generations of jurists moved Sh jurisprudence to rationalist ends. Mufd, s, and alAllma al-ill were prominent jurists who had lasting effects on the trajectory of the law and discourse about legal maxims. The discussions centered on an innocence presumption, for which jurists looked to traditions for support. 1. Toward a Conservative Rationalism: Innocence on Textualist Bases Reflecting on the tradition of Jafar al-diq cited by Ibn Bbawayh, Mufd (d. 413/1022) concluded that the innocence presumption was indeed a central precept of Sh law.38 He observed that, after [the completion of] revelation, [one realizes that] the Law specifies its limits and designates its prohibitions [and thus] arrives at the principle (ukm) that any act not governed by a text explicitly indicating prohibition
36 Modarressi, Introduction, 32. The other three are the Kf of Kulayn (d. 329/941) and the Istibr and Tahdhb al-akm of Ab Jafar al-s (d. 460/1067). On Mufd (d. 413/1022), see, e.g., Najsh, Rijl, Qum 1986, 399-403; Khwnsr, Rawat al-jannt (1928), 536-43; Ibn Shahrshb, Malim al-ulam, ed. Iqbl (Tehran 1353/1954), 100-02. For his theological views, see Tamima Bayhom-Daou, Shaykh Mufid (Oxford: Oneworld, 2005), and the sources listed on pp. 139-40 [for sources on his biography]; Paul Sander, Zwischen Charisma und Ratio. Entwicklungen in der frhen immitischen Theologie (Berlin: K. Schwarz, 1994); McDermott, The Theology of al-Shaikh al-Mufd (cited above, note 13); Wilferd Madelung, art. Mufd, EI2, 7:312, and sources listed therein. 393
38 37

must be permissible.39 This observation is immensely important because, along with Ibn Bbawayhs recounting of the adth with similar import (Jafar al-diqs statement that everything is permissible unless specifically prohibited), it is one of the earliest formulations in Sh law suggesting a tentatively rational presumption of innocence. Mufd is discussing conclusions that one reaches through revelation.40 But by discussing the presumption as a broad-ranging principle, he is in some sense packaging it as a rational precept, setting the tone for further elaboration of its meaning on rational bases. The expansion of the rational basis in Mufds formulation of the innocence presumption was deliberate. It was part and parcel of his departure from his teachers anti-rationalist stance on theology and his attempts to displace Ibn Bbawayhs traditionism. Even before Ibn Bbawayhs death, Mufd began gaining in scholarly stature in Baghdad.41 With his rise in the ranks of Sh intellectual leadership, Mufd initiated the first moves away from traditionism by adopting a rationalist theology inspired by a conservative form of Mutazilism, represented by the teachings of Ab lQsim al-Kab, and by launching a fierce critique of Ibn Bbawayh on its basis.42 Mufd had become the leading theologian and spokesman of the Sh community of his time. He saw it as his task to counter Ibn Bbawayhs extreme
39 Mufd, Ta, 69.
40 41 42

Indeed, he makes efforts elsewhere to show that he relies on revelation alone. See idem, Tadhkira, 43. Madelung, Immism and Mutazilite Theology, 21.

See ibid., 13-29 (listing borrowings as well as significant doctrinal differences between his and Mutazil theology). Madelung, Mufd, 7:312 (noting that he had most likely studied earlier in his home town under the head of the Baghdd school of Mutazilism, Abu l-Qsim al-Kab, on whom, see El Omari, The Baghdd Mutazilite School. On Ab l-Qsim al-Balkh al-Kab (d. 319/931), the last great proponent of Baghdd school Mutazilism, see Racha El Omari, The Theology of Ab l-Qsim al-Bal/al-Kab (d. 319/931): A Study of its Sources and Reception (unpublished PhD dissertation, Yale University 2007). 394

traditionism, defend Shism against both Sunn traditionists and rationalists, and articulate firmer arguments for Sh law and theology in response to both. He himself had studied under both rationalist and traditionist jurist-theologians. His own orientation was somewhere in between the two. As for his traditionist tendencies, Mufd preferred a textualist approach that allowed for some, but not too much, rational analysis as a means of identifying general principles of law that supported and elaborated statements from tradition. For him, pure reason-based arguments introduced human discretion into a legal system that was supposed to be guided solely by the divine Lawgiver. Those approaches were faulty and often speculative; they yielded no certainty.43 Moreover, Mufd wrote, Reason does not render (people) free from the need for revelationwhich is why people are only held fully accountable with revelation.44 As conduits of divinely inspired knowledge, through their teachings, Prophets and Imms were a safeguard against the whims of human reason and upheld the supremacy of God as Lawgiver. On the side of rationalism, Mufd did adopt some explicitly rationalist principles in an effort to break the Sh traditionist grip on the law.45 An important premise was his recognition of an innocence presumption. For Mufd, the presumption rested on his formulation of the well-known Mutazil theological principle of legality (qub al-iqb bi-l bayn in the common later formulation), that is, that God would not punish until He
43 Mufd, Tadhkira, 43. On Ibn al-Junayd (d. after 340/951-2) [= Ab Al Muammad b. Amad al-Iskf], see Modarressi, Introduction, 35.
44

Mufd, Awil al-maqlt f al-madhhib al-mukhtrt, ed. Abbs-Ql al-Wi al-Jarandb (Tabriz: Mabaat al-Ria, 1364/[1944]), 8, 11-12. Cf. ibid., 2-16 (distinguishing Twelver Sh doctrine from Mutazil rationalism).

45 See Modarressi, Introduction, 40 (describing elements of his rationalism and his criticism of traditionists in an approach designed to pave the way for the return of rational analysis in Sh doctrine).

395

had clarified the law.46 On that backdrop, he elaborated significantly on the pithy statement that Ibn Bbawayh had merely quoted from the traditions, that everything is permissible unless prohibited. In his commentary or correction to Ibn Bbawayhs creed, Mufd explained that the statement really indicates that divine legal rulings are divided into two categories: (1) acts wherein the intellect comprehends the ruling of prohibition because the mind immediately knows an act to be morally wrong or undesirable, such as acts of injustice (ulm);47 and (2) acts for which reason discerns rulings of neither prohibition nor permissibility, and which are therefore in need of revelation to clarify their status.48 He explains that the latter category includes rulings that may have been subject to divine abrogation and change over time (before Islam). But after revelation, the governing principle is that everything for which there is no textual prohibition is permissible, because the divine law establishes the boundaries of law and specifies the prohibited ... . It is in this way that Mufd delineated the scope of the innocence presumptionas a negative textual principle, which only arises in perhaps limited circumstances where the text provides too little guidance. This stance perhaps explains the rather short shrift Mufd gives to the udd maxim, which does not appear in his fiqh works at all. Instead, when discussing criminal law directly, Mufd highlights his traditionist-textualist side, arguing with reference only to the explicit indications of the text and without mention of the
46 See Mufd, Awil, 28-29 (l yuadhdhab aad ill al dhanb iktasabah aw jurm ijtaramah aw qab nahh fartakabah, and noting general agreement amongst Mutazila (ahl al-tawd) on the presumption of innocence (alat al-bara)). Mufd does not mention the second, usually related, Mutazil principle against imposing moral-legal accountability where people lack capacity (adam al-taklf bim l yuq), likely because Kab of the Baghdd school of Mutazilismwhich he followed, albeit indirectlydid not accept it. See Omari, Ab l-Qsim al-Kab (cited above, note 42).
47

Mufd, Ta al-itiqd, ed. Abbs-Ql al-Wi al-Jarandb Tabriz: Mabaat al-Ria, 1364/[1944], published together with Awil (cited above, note 44), 69 (qabbaah al-aql). Ibid. (al-khar mawqf f l-aql; l yuq al l-ar wa-l l-iba). 396

48

innocence presumption, much less the udd maxim. He does cite instances where there is no add liability, but these relate mostly to cases of coercion (like rape) and repentance, for which there are explicit revelatory texts that lift liability from the victim or offender, respectively.49 In addition, he notes instances where there will always be add liability, such as cases of sodomy, but again, this is based on explicit traditions. It is not that acts of male sodomy are analogized to prohibited acts of zin, as they are in some Sunn contexts which lack any text directly imposing a penalty; rather, it is by virtue of the adths contained in the Sh corpus that male sodomy constitutes a death-eligible add crime.50 Mufds traditionism in udd discussions aside, by using rational arguments in addition to traditions to affirm the innocence presumption, he nevertheless paved the way for the more liberal rationalist stance that would come to dominate Sh law. His influence was extensive. Virtually all of the leading Sh scholars of the following generation were students of Mufds teachings.51 Inasmuch as Mufd was trying to split the difference between rationalism and traditionalism, his students took his approach to law and theology in different, sometimes unpredictable, directions. Of particular note are two divergent paths that stretched far into the horizon of Sh law and theology: the adoption of a more liberal rationalism by his highly influential student al 49 See idem, Muqnia, 787 (twice), 789 (applying the maximthough not in its standard formto instances of coercion, as in rape, and situations in which a defendant repents before a case is brought before the courts). Ibid., in YF, 23:31. For anaf debates concerning whether male sodomy could be treated as a add crime, given the lack (or rejection) of textual bases for doing so, see Lange, Justice, Punishment, 199-214.
51 50

His students included those who would comment on the innocence presumption and develop the law with respect to it: the two naqbs (state-appointed leaders of the Sh community, to whom he was tutor), al-Sharf al-Ra (d. 406/1015) and al-Sharf al-Murta (d. 436/1044), Ab Jafar Muammad b. al-asan al-s (d. 460/1067), and others. For fuller lists, see Madelung, Mufd, 7:312; Devin Stewart, Islamic Legal Orthodoxy: Twelver Shiite Responses to the Sunni Legal System (Salt Lake City: University of Utah Press, 1998), 129. 397

Sharf al-Murta and the adoption of a more conservative approach by his equally influential student Ab Jafar al-s. 2. Toward a Liberal Rationalism: Innocence on Rational Bases Even before Mufds death, al-Sharf al-Murta (d. 436/1044), assumed a leading role as both scholar and state-designated leader (naqb) of the Alid community.52 AlSharf al-Murta, like Mufd, accepted the innocence presumption but greatly expanded its scope in the course of adopting a more rationalist approach to law and theology. Where Mufd limited the presumption to matters of ritual, al-Sharf alMurta applied it to udd and other laws, whenever revelatory texts were silent or ambiguous. The shift had to do with the type of rationalism that al-Sharf al-Murta had adopted. Whereas Mufds brand of rationalism drew from the conservative Baghdd school of Mutazilism, al-Sharf al-Murta was inspired by the more liberal and enduring Baran school, which he had studied under its head scholar, Q Abd alJabbr, in their native Baghdad.53 To be sure, al-Sharf al-Murta agreed with Mufd on the core Sh theological and legal doctrine surrounding the immate: its necessity, the designation of twelve Imms, and the logic of the Occultation.54 But al-Sharf al 52 Al-Sharf al-Murta (d. 436/1044) succeeded his brother, al-Sharf al-Ra, as leader of the Ald community. For his theological views, see McDermott, Theology, 373-94. On the office of the naqb, C.E. Bosworth and J. Burton-Page, art. nab, EI2, 7:926. Madelung, Immism and Mutazilite Theology, 25-27 (noting that al-Sharf al-Murtas writings drew on the works of his teacher, Q Abd al-Jabbr). For a discussion of rationalist jurists who followed and further developed al-Sharf al-Murtas approach, see Modarressi, Introduction, 43-44. On the conservatism of the Baghdd or traditionist schools and the liberalism of the Baran or rationalist schools, see discussions by Madelung and Modarressi in the works cited here.
54 53

Instead of relying on traditions alone, al-Sharf al-Murta adduces rational supports over and above and often instead ofarguments based solely on revelation to support theological and legal doctrines. For examples of his defenses of the immate doctrine, see al-Sharf al-Murta, al-Ul al-itiqdiyya, in Nafis al-makht, ed. Muammad asan l Ysn (Najaf: al-Mabaa al-aydariyya, 1954), 1:80-81; idem, 398

Murta went farther than Mufd in appeals to rational analysis in law. Possibly, his aim was to place Imm thought on firmer rationalist bases precisely to counter Mutazil Sunn detractors who accepted the role of reason but rejected Sh traditions. The defining feature of al-Sharf al-Murtas approach and the move that took him farthest from Mufd was his adoption of the Mutazil rationalist principle that the basic truths of religion can be established by reason.55 He maintained that whatever the human intellect perceives as morally good (asan) or morally wrong (qab) is indeed so before God.56 This was an expression of the enduring Sh principle of correlation between revelation and reason (qidat al-mulzama), stating that whatever reason dictates, so does the (divine) Law.57 In other words, morality is objective; perceptions of moral value do not differ from God to human beings. However, because Gods knowledge encompasses all things, He always perceives the true moral value of all acts, whereas the human mind may fall short because of its inability to perceive the full facts.58 Therefore, it would behoove humans to look to Gods law, for He legislates
al-Dhakhra f ilm al-kalm, Amad al-usayn (Qum: Muassasat al-Nashr al-Islm, 1411/[1990-1]), 409-29, 502-04 (on the designation of twelve Imms). Cf. Madelung, Immism and Mutazilite Theology, 25-27.
55

Madelung, Immism and Mutazilite Theology, 25-27, esp. 25 ([While Mufd viewed theology] merely as a means of defending more effectively the Immite dogma derived from the teaching of the Imms, alMurta accepted the Mutazilite view that the basic truths of religion are to be established by reason alone.) (citing al-Sharf al-Murta, Masil al-Sharf Ab al-usayn al-Musin b. Muammad b. Nir [now published in al-Sharf al-Murta, Rasil). See also al-Sharf al-Murta, al-Ul al-itiqdiyya (cited above, note 54). Al-Sharf al-Murta, Rasil, 3:177-79.

56 57

See idem, Dhakhra, 105 (noting the correlation: fa-tajr lafat taklf wa-mukallaf maa l-qub wal-usn, wal-wjib wa-ghayr al-wjib). Cf. See Modarressi, Introduction, 4 (kull m akama bih al-aql akama bih alshar) (citing, Muaqqiq, Mutabar; Shahd I, Dhikr; idem, Qawid; Miqdd, Tanq; ib al-Madrik, Hidyat al-libn; Qaf, Kashf al-fawid); see also al-Wad al-Bihbahn, Rislat alat al-bara, in al-Rasil al-uliyya (Qum: Muassasat al-Allma al-Mujaddid al-Wad al-Bihbahn, 1416/[1996]), 392. Al-Sharf al-Murta, Rasil, 3:179 (giving the frequently-debated example of divergent perceptions of the morality of killing a child, which was deemed a moral act only with the benefit of the full divine knowledge that Khir had but the prophet-to-be Moses lacked in the Qurnic story at 18:65-82). But see Muammad Bqir al-adr, Durs f ilm al-ul, trans. Mottahedeh, Lessons, 49-52 (discussing Ibn Bbawayh and Mufds commentary on this same story to argue against the practice of ijtihd in the old sense taken 399
58

perfect morality; that is, God obligates only what is morally good and beneficial (though He does not obligate all things beneficial), and He punishes only what is morally wrong and harmful.59 In addition, al-Sharf al-Murta explicitly incorporates the two overarching Mutazil precepts of moral-legal accountability central to the entire structure and process of law. The first is the principle of legality, which we have seen before with Mufdthat it is morally unjust to punish without clarifying the law. The second is the principle of capacity (adam taklf m l yuq), mentioned above, that it would be immoral to punish someone who had no capacity to know and thus follow the law. Al-Sharf alMurta puts it this way: We all affirm that it is morally wrong (qab) to impose legalmoral accountability for acts beyond ones capacity.60 Therefore, questions of morallegal accountability run parallel with questions of moral value (i.e., usn and qub), which likewise run parallel with (revelatory) rules of obligation and prohibition. Moral-legal accountability applies only after a person has reached full intellectual maturity, the capacity to fully know the law, and the ability to choose freely whether to follow it.61

from Sunn jurists of taking speculative reasoning as a source of law rather than the more developed sense amongst Sh jurists pointing to the process of deriving the law from the texts).
59 60 61

See al-Sharf al-Murta, Dhakhra, 295-302. Ibid., 105 (taklf m l yuq qab).

Ibid. (specifying that taklf is not asan until after a person reaches full intellectual maturity (ikml alaql) and comprehends the law (hab al-adilla)), 121 (noting that the knowledge of the law can be actual or constructive, i.e., that a person either knows or has means to discover the law (liman bi-m kullifa aw mutamakkinan min al-ilm bi-dhlik)), 295 (noting that punishment is due for immoral acts of commission of prohibitions or omission of obligations so long as the person freely chooses the (prohibited) action or is able to avoid abandoning the (obligated) action). 400

In principle, al-Sharf al-Murta equates reason and revelation, but practically he determines morality with respect to revelation.62 That is, (moral) wrongs, he says, are those prohibited by God in His revealed legislation.63 Al-Sharf al-Murta thus privileges the rules of revelation (or the prerogative of the Lawgiver) whenever they seem to diverge from the dictates of pure reason. Yet, he limits the scope of revelations exceptionalism to particular cases, justifying the divergence in terms of Gods all-encompassing knowledge of the facts and the notion of His justice.64 For al-Sharf al-Murta, revelation provides moral-legal guidance to cover all acts, through general precepts if not specific textual rules. He readily admits that situations are infinite but the specific texts finite. Yet he maintains that revelation gives principled instructions to cover infinite situations.65 Thus, jurists must have recourse first to those authoritative texts: the Qurn, widely transmitted reports (mutawtir), and individually transmitted traditions (single-source reports) known to be authentic by virtue of community consensus and contextual clues (qarin) that assure their veracity.66 He exhibited a deep skepticismmore so than Mufdabout the utility of single-source reports for resolving questions of theology and, a fortiori, law. To overcome those doubts, he imposed stringent criteria for accepting such reports by
62 Al-Sharf al-Murta is by no means unique in this regard. In truth, his attention to revelatory texts can be thought of as bringing the Islamic element to his theology and law. Jurist-theologians typically opposed philosophical principles that disagreed with their theological dogmas from scripture; yet they tended increasingly to adopt philosophical terminology and concepts, which they folded into their writings. See, e.g., Sabine Schmidtke, The Theology of al-Allma al-ill (d. 726/1325) (Berlin: K. Schwarz, 1991) (citing Shahrastn, al-Milal wal-nial; Jamal al-Dn Ab l-asan Al b. al-Qif, Tarkh al-ukam).
63 64 65

Al-Sharf al-Murta, Dhakhra, 81. See discussion in ibid., 295-302.

Idem, Rasil, 1:316 (fa-qad tadull m yatanh f nafsih [al-nu al-mutanhiya] al ukm awdith l tatanh). Ibid., 1:315. 401

66

confronting each with reason and then, if it stood up, with reliable evidence like that of the Qurn.67 If we suppose that even those sources somehow do not provide the rule, alSharf al-Murta says, then we have recourse to the rulings that we derive through reason, which itself is (or accords with) Gods law.68 Thus, we see that al-Sharf alMurta has brought the equivalence between reason and revelation full circle: he believes that revelation provides rules to cover all aspects of life, but where the specific rules are undiscoverable or at least inexplicit, they are ambiguous, and reasons dictates can fill the gaps based on general revelatory principles. One such principle is of course the presumption of innocence. Its scope of operation was as wide as the domain of ambiguity. The catch was that al-Sharf alMurta rarely, if ever, found the texts ambiguous, particularly not in the domain of udd lawswhich were, by definition, specifically and clearly designated by God. In discussing criminal law, he typically followed the revelatory texts and used rational arguments to explain or justify them. Take his discussion of sodomy. In his work distinguishing unique positions of Sh law and defending them against Sunn critics, Kitb al-Intir, he points to the revelatory text that he deems most authoritative: a report of Als decision that the death penalty applies to sodomites

67 See Madelung, Immism and Mutazilite Theology, 25 note 4 (citing al-Sharf al-Murta, al-Masil alarbulusiyya al-thlitha) (describing the Sh books of adth as being full of errors for which strict criteria are needed). Al-Sharf al-Murta, Rasil, 1:318 (ukm al-al f l-aql). Another way of reading this statement is as an affirmation of the innocence presumption, alat al-bara, which I do not find mentioned elsewhere in his works. That is, here, he is saying that one appeals to the original presumptive state. 402
68

bolstered by Sh scholarly consensus that the single-source report was authentic.69 He further appeals to contextual indications drawn from the Sunn literature, commenting on contemporaneous developments in the proto-Sunn context.70 Finally, he appeals to rational arguments perhaps designed to defend the Sh position against its Mutazil opponents. He argues that udd laws were legislated for deterrence from grave moral offenses (fawish) and other (blood) crimes (jinyt). The more morally corrupt the act (afash), the greater the measure of deterrence must be. Sodomy is more morally corrupt [than zin], as we know from Qurnic discussions that the people of Lots penchant for sodomy brought about the destruction of Sodom and Gomorrah. Thus, rationally, al-Sharf al-Murta suggests, sodomy requires harsher punishment in criminal law as well. He is careful to note that this rational exercise is not a form of analogical reasoning (qiys), which Imms reject as yielding questionable and uncertain conclusions; rather, it is a type of logical argumentation from inference (istidll)71 that provides a supporting rationale for the unambiguous Sh textual rule. What about the tradition of udd avoidance? Al-Sharf al-Murta did not invoke the udd maxim in its standard formulation in his legal works, perhaps because of the doctrine that criminal law texts were clear in revelation and the fact that he rarely found those texts to be ambiguous. He may also have disregarded the rule because he thought its textual basis weak. Although Sunns during this time were
69 Idem, Intir, in YF, 23:49-50 (citing the tradition of Al (man wajadtumh al amal qawm L fa-qtul lfil wal-mafl bih), and adducing claims of consensus to head off objections that the tradition may be unreliable because transmitted elsewhere through the chain IkrimaIbn Abbsthe Prophet).
70

Ibid. (citing sources stating that Ibn Abbs and Ab Bakr agreed with Al, and that there is no disagreement recorded contemporaneous to their times; also noting reports from the early proto-Sunn jurists, Mlik and al-Layth b. Sad, that male sodomizers are to be stoned to death). Ibid., 252. For a comparison of the Sunn treatment, see Lange, Justice, Punishment, 199-214. 403

71

beginning to regard the udd maxim as a Prophetic adth,72 and although Ibn Bbawayh had deemed it an authentic adth in the Sh corpus decades before,73 alSharf al-Murtalike Mufddoes not seem to have followed suit. Their skepticism toward traditions and higher standards for authenticating them likely made these rationalist jurists reject or disregard claims that the udd maxim was an authentic text. Moreover, that they privileged revelation afforded the innocence presumption only a narrow scope and suggested limited circumstances for overturning punishment due for the commission of moral wrongs and omission of moral obligations legislated in the texts.74 Thus, on the one hand, these early rationalists seemed to exclude the innocence presumption from the realm of udd and implicitly questioned the authenticity of the udd maxim as a adth. Yet on the other hand, they were not quite against the udd maxim; it was just that the primacy given to revelation in their synthesis between revelation and reason gave them no occasion to be explicitly for it. * * *

After al-Sharf al-Murta, Sh theology more or less followed the rationalist theological contours that he had outlined: distinctive positions about the immate and other unique Sh dogmas, an equation of revelation to reason with a thumb on the

72 The anaf jurist from Rayy, Ab Bakr Amad b. Al al-Rz (d. 370/981), known as Ja, was the first Sunn jurist that we know of to cite the udd maxim as a prophetic adth. See Ja, Akm al-Qurn, 3:330.
73 74

He includes it in his Muqni, 147, and his Faqh, 4:53.

For instance, al-Sharf al-Murta gathers from revelatory texts that the obligation to impose punishment can be canceled by pardon (i.e., Gods grace), as the result of true repentance that includes sincere regret for committing the act, through increased good works (to cancel out the bad), etc. AlSharf al-Murta, Dhakhra, 302. Here, he means otherworldly punishment, but the sense perhaps can be used to understand his jurisprudence in udd contexts, which lacks focus on canceling punishments in this-worldly contexts. 404

revelation side of the scale, and adherence to the principles of legality and capacity.75 Theologians and jurists subsequent to al-Sharf al-Murta developed these outlines into fuller doctrines and placed different points of emphasis on the probativity and operational scope of reason alongside revelation. The next generations of leading scholars were al-Sharf al-Murtas students and students of his students, including Ab Jafar al-s (d. 460/1067), who had also studied under Mufd and who would leave his own deep imprint on Sh law.76 3. Toward a Balanced Rationalism: Innocence on Textualist and Rationalist Bases The next turn for the innocence presumption came through scholars who tried to broker a more harmonious marriage between reason and revelation. After al-Sharf al-Murta, most Sh jurists continued to defend and demand a central role for reason in informing the law. It was perhaps natural that they would recognize and eventually begin to produce works of legal maxims on that basis. As had al-Sharf al-Murta, they had incorporated the two central Mutazil presumptions that provided the theoretical framework for the rationalist-pragmatist interpretive philosophy of law: the principle of legalitythat it is morally unjust to punish without clarifying the lawand the principle of capacitythat it is morally unjust to punish someone who has no capacity to know and thus follow the law. On these bases, Sh jurists held that for liability to attach to human acts, especially criminal liability, the law must be clear and must not go beyond the ability of human beings to carry it out. Moreover, clarity required certainty, which was expressed in the long-standing, stringent requirement in Sh law that legal rulings
75 See Madelung, Immism and Mutazilite Theology, 27.
76

For an accessible list of al-Sharf al-Murtas students, see Stewart, Islamic Legal Orthodoxy, 129-30. 405

rely only on inputs of certain authenticity and meaning.77 Absent such rulings, the default was presumed innocence and exemption from moral-legal liability. In rationalist circles over time, the innocence presumption became firmly entrenched as the rule of first resort whenever the text was ambiguous (the arguments for which are detailed below).78 Once this presumption was firmly in place, the scope of the udd maxim was widest, and it proliferated in the juristic works of positive law and legal maxims alike. But before then, Sh jurisprudence took several twist and turns. As it turns out, the grounds for clarity, capacity, and certainty were themselves a matter of interpretation. * * *

Ab Jafar al-s attempted to develop Sh jurisprudence in a slightly different direction from his teachers Mufd and al-Sharf al-Murta.79 Though committed to rationalist methods of interpretation, he subscribed to a traditionist reliance on singlesource reports as authoritative sources of law. Toward that end, he collected yet more traditions in two works that came to round out the canonical corpus of Sh adths, alIstibr and Tahdhb al-akm. In those works, he did not include the udd maxim, but in his works of law, he emphatically did. In al-Nihya, his treatise on law, he applies the udd maxim in cases of ignorance, repentance, and coercion, as had his predecessors on the basis of traditions.80 But he also applies it expansively in other areas, sometimes
77 That is, the authoritativeness of assurance (ujjiyyat al-qa, i.e., ilm). See Mottahedeh/adr, Lessons, 5862 (translated as the probativity of assurance).
78

An exception is Muammad Bqir al-adr, who privileged the precautionary principle (itiy) above the innocence presumption. See ibid., 120-25, and discussion below, Section II.D.3. On ss jurisprudence, see Modarressi, Introduction, 44.

79

80 See s, Nihya, 2:708, 716, 725. This work was penned toward the end of his life and became the most authoritative Sh text for the next two centuries. See Modarressi, Introduction, 44.

406

in surprising ways. For example, he holds that mere claims that there was no wrongdoing are enough to create doubt or ambiguity sufficient to avoid the add punishmentas in the case where a couple is found together and arrested for zin but claims to be married, or the case where someone steals from a secure location but upon arrest claims that the owner gifted the stolen item to him.81 He even articulated a theory of partial ambiguity and proportional application of the udd maxim. If someone slept with a slavewoman whom he only partially owned, judges were to avoid imposing the add punishment (ordinarily 100 lashes) in amounts proportionate to his ownership interest; for although the act was 100 percent illicit, only that fraction for which there was no full ownership was conceivably ambiguous.82 In the Nihya and other works, s relies on the innocence presumption for his general tendency to identify ambiguity and advocate avoidance of udd sanctions.83 These cases illustrate how ss traditionist-leaning rationalism resulted in a criminal law jurisprudence that was neither here nor there: He rejected the textual form of the udd maxim but expanded it on rational bases. This amalgamated

81 s, Nihya, 2:711, 746. Ibid., 2:717 (listing cases where a man slept with a jointly owned slavewoman or with a slavewoman captured and included in the war spoils). Later jurists had disputed this proportionate theory. E.g., Ibn Idrs, Sarir, 3:446 (recognizing but rejecting the proportional theory in favor of a total avoidance of udd punishment in cases of disputed or joint ownership, in part on the basis of the innocence presumption).
83 82

See Ibn Idrs al-ill, Sarir, 3:432-33 (noting his disagreement with ss reliance on the innocence presumption, especially in his Khilf, at which point he had apparently lessened his reliance on singlesource reports); cf. ibid., 3:433-34 (noting his agreement with ss later opinion, in Khilf, that in cases of mistaken identity where a woman masquerades falsely as a mans wife, the udd maxim applies in some sense to avert the add punishment from the manat least publicly; Ibn Idrss support is based on the udd maxim as a adth and on the innocence presumption). The add-averting tendency was not absolute. See, e.g., ibid. (reporting that s advocated imposing a add punishment for joint theft, against his own opinion that the add liability was removed by virtue of the innocence presumption and presumably the udd maxim). 407

approach, perhaps inspired by his earlier studies of Sunn law,84 gained him significant criticism from rationalists and traditionalists alike.85 According to one scholar, his borrowings from Sunn law provided ideas for expanding Sh jurisprudential methodologies but also allowed inconsistencies with basic Sh precepts to creep into the substance of the law. 86 These lingering areas of inconsistency were later clarified by a series of prominent jurist-theologians, culminating in al-Allma al-ill (d. 726/1325),87 who has been said to represent the last school of original thought in Sh theology. 88 For the first time, he and his teachers applied technical philosophical concepts to the substance of the law and theology to devise a systematic theory that emphasized the authoritativeness of traditions for legal interpretation while preserving the laws analytical and rational methods.89 His students and intellectual descendants followed this same track. Al-Shahd al-Awwal, who had studied under al-Allma al-ills son,
84 He initially studied Shfi law, and Subk includes him in his biographical dictionary of Shfi jurists. See Subk, abaqt al-Shfiiyya.
85

Pure-bred traditionists accused him of practicing Sunn-style analogical reasoning (qiys) and mainstream rationalists criticized him for reasoning on the basis of weak traditions. Modarressi, Introduction, 45. Ibid., 47. Al-Allma al-ill (d. 726/1325)s most important legal works include Mukhtalaf al-Sha, Tadhkirat alfuqah, Muntah al-malab, Tarr al-akm al-shariyya, Qawid al-akm, Irshd al-adhhn, Nihyat al-ikm, Talkh al-marm. For his contributions to Sh law, see Modarressi, Introduction, 44, 47-48. For his theological views, see Schmidtke, The Theology of al-Allma al-ill (d. 726/1325) (cited above, note 62).

86 87

88

See Madelung, Immism and Mutazilite Theology, 27 (observing that after him, Sh theology developed through commentaries, abstractions, and restatements of his works and those of his teachers Nir al-Dn al-s (d. 672/1274) and al-Muaqqiq al-ill (d. 676/1277)); cf. Modarressi, Introduction, 23 (noting that he represents a turning point in Sh law, with some sources referring to scholars preceding him as the ancients and those after him as the moderns). Madelung, Immism and Mutazilite Theology, 27 (calling this a new phase of Sh theology, one which had been espoused during al-Sharf al-Murtas lifetime, but not fully incorporated into Sh scholarship until Nir al-Dn s and al-Allma al-ill). As had al-Sharf al-Murta, though al-Allma al-ill accepted traditions as sources for law, he continued to regard them skeptically, evaluating them on the basis of reason; this approach became a standard feature of Sh jurisprudence. See, e.g., Bihbahn, Risla, 361-64. 408

89

was the first to distill the principles that al-Allma al-ill had penned in an exclusively Sh framework and to collect the theological precepts and jurisprudential principles that guided the law. To that end, he produced the first work of legal and other maxims, al-Qawid wal-fawid,90 which was enormously influential.91 These developments, beginning with s and coming to fruition in al-Allma al-ill, completed the rationalist reconciliation between reason and revelation; they gave form to a rationalist-traditionalist combination that endures in Sh law to this day.92 Al-Allma al-ill was a staunch supporter of the objective theory of morality along with the principles of legality and capacity that reason required.93 He and other rationalists continued to espouse the principle of correlation between revelation and reason and emphasized that it gave form to the theory of objective values, allowing rules to be inferred from the sole verdict of reason.94 Through reason, humans could discern the general contours of good and bad acts. Yet, as Mufd, Murta, and other Sh jurists had long held, al-Allma al-ill also maintained that there are some areas of law where rules of obligation (and therefore good acts) could not be known by reason alone; revelation was required, for example, to advise humans on performing ritual acts of worship. In addition, revelation provides general rulings to cover acts,
90 This is the common view amongst scholars working on Sh legal maxims. See, e.g., Muammad asan al-Bujnrd, al-Qawid al-fiqhiyya, ed. Mahd al-Mihrz and Muammad usayn al-Diryt (Qum: al-Hd, 1419/[1998]), 1:9. Some list al-Allmas work, Qawid al-akm (f marifat al-all wal-arm) among works of legal maxims that would prefigure that of Shahd I, e.g., Lajna, Qawid, 592 (bibliography), but a review of the work shows that is more a fiqh work detailing the law than one dealing with principles governing the law. As a testament to its influence, the work is the subject of numerous commentaries. See gh Buzrg, al-Dhara il tanf al-Sha (listing commentaries).
92 93 94 91

See Modarressi, Introduction, 44. See Schmidtke, Theology, 99. Modarressi, Introduction, 4. 409

but humans can discover its detailed rulings only with difficulty through rational deliberation. Through revelation, God therefore assists man to gain access to the full knowledge about objective values to which He is subject Himself.95 In his criminal law jurisprudence, al-Allma al-ill shows that he adopted the innocence presumption as well. Though he does not cite the udd maxim directly, he devotes considerable space to outlining areas of ambiguity for which udd liability should be voided. For example, he holds that, in cases where individuals are confused about the legality of a certain act (thinking it permissible when it is in fact not), there will be no udd-liability because the confusion is the type of ambiguity or doubt that requires avoidance of udd sanctions.96 He turns this into a general principle, echoing the udd maxim: in any case where a person believes that [an act] is permissible [where it is in fact not], add liability is removed.97 And he applies it liberally, to cover cases of mistake of fact, inadvertence,98 and coercion,99 as well as issues of proof and other evidentiary problems.100 This too becomes a general principle, echoing the udd maxim for procedural and evidentiary law: whenever any doubt or ambiguity faces the judge, the udd punishment will not apply.101
95 Schmidtke, Theology, 100.
96

E.g., al-Allma al-ill, Qawid, in YF, 23:397 (case of a man marrying a prohibited woman by mistake, on the basis that his mistaken belief in the legality of the marriage is a shubha (itaqadah shubhatan wajahala l-tarm)). Cf. ibid., 422 (on theft, on the mistaken belief of ownership).

Al-Allma al-ill, Qawid, in YF, 23:397 (in the context of marriage and zin: kull mawi yutaqid fh ibat al-nik yasqu fh al-add).
98

97

Ibid., 23:397. He also adopts ss proportionality rule for cases where a person enjoys the benefits of full ownership where it is in fact partial, including sex with slavewomen and property. See ibid. (slavewoman), 23:423-24 (theft from ghanma). Ibid., 23:418 (wine-drinking).

99

Ibid., 23:398 (witnesses), 406 (claims of marriage, if plausible (mutamal), in cases of alleged zin), 422 (claims of ownership in cases of alleged theft).
101

100

Ibid., 23:422-23 (on theft: law aala al-shubha lil-kim saqaa al-qa). 410

This is the approach that would endure: reliance on the innocence presumption and other fundamental rationalist precepts in Sh jurisprudence and liberal application of the udd maxim (whether as a tradition or principle of reason) in positive law. In rationalist jurisprudence, the innocence presumption was key. It was central to the operation of the udd maxim, which became a core feature of criminal law jurisprudence.102 And the presumption was similarly so central to the entire structure of law and theory of ambiguity, under which the udd maxim fell, that rationalists defended the presumption vehemently against the later traditionists who waged a full-on attack. C. Traditionist Parry: Avoiding Possible Culpability and One Right Answer as Text Rationalisms steady rise over traditionism since the 4th/10th century was finally overshadowed and almost eclipsed in the 11th/17th century at the hands of the traditionist-revivalist Muammad Amn al-Astarbd (d. 1036/1626-7). The changes came with dramatic new political developments in the Sh community: In 907/1501, a group of military leaders under the banner of the Azerbaijani ruler, Shah Isml, seized power over Persian lands and established the first large, independent Twelver Sh polity.103 Astarbd was well regarded by the Safavid regime and preceding events had helped pave the way for his success.104
102 With the exception of Ibn Idrs, Sh jurists rarely cited the udd maxim as a adth, but applied it nonetheless, in ways similar to al-Allma al-ills articulation and application of the principle. Contemporary Sh jurists accept the maxim as a core precept of Sh criminal law. See, e.g., Dmd, Qavid, 4:44; Lajna, Qawid, 359. On the Safavids (r. 907-1135/1501-1722), see H.R. Roemer, The Safavid Period, in The Cambridge History of Iran, ed. W.B. Fisher (Cambridge: Cambridge University Press, 1968-91), vol. 6; see also Roger M. Savory, Safawid Persia, in The Cambridge History of Islam, ed. Peter Holt et al. (Cambridge: Cambridge University Press, 1970), 1:349-429. On the consolidation, production, and transmission of Sh religious knowledge in these lands (which had mixed Sunn and Sh populations but little religious knowledge generally), see Albert Hourani, From Jabal mil to Iran, Bulletin of the School of Oriental and African Studies 49, 1 (1986): 133-40. But see Andrew J. Newman, The Myth of the Clerical Migration to Safawid 411
103

Astarbd laid out the major principles of a new form of traditionism in his seminal work, al-Fawid al-madaniyya. There, Astarbd responded pointedly to the rationalist claims. He attacked them not only for their adoption of an innocence presumption but also for what he regarded as their selective misuse of traditions to support their a priori positions and for their entirely flawed theory of law and legal interpretation. To him, it is preposterous for rationalists to suggest that he and other traditionists had adopted an incoherent stance toward ambiguity; rather, the rationalist stance was excessively risky, particularly in areas of potential prohibitions. Take the adth cited by Ibn Bbawayh, which rationalists constantly trot out in support of their doctrines, stating that everything is permissible unless specifically prohibited. For Astarbd, rationalists have a fundamental misunderstanding of its importalong with that of the other traditions they cite in support of the innocence presumption.105 Their error has to do with a failure to defer to revelation instead of reason and, therefore, to comprehend the true nature of ambiguity, morality, and the interpretive process.

Iran, Die Welt des Islams 33, 1 (1993): 66-112 (challenging Hourani). But see, in turn, Devin Stewart, Notes on the Migration of mil Scholars to Safavid Iran, Journal of Near Eastern Studies 55, 2 (1996): 81103 (refuting Newmans refutation of Hourani). On developments that laid the groundwork for Astarbds rise, see Modarressi, Introduction, 52-54; Newman, Development and Political Significance, 49295, 755-77 (on Karak), 785-873 (on Qaf). The Safavid regime asked him for his legal opinions, and he presented his scholarly writings to political authorities as gifts. See Gleave, Scripturalist Islam, 97 (describing the fatw that he gave to Shh Abbs I on the purity of wine), 315-19 (text and translation of the fatw), 35 (noting that he presented his work, Dnishnmah-yi Shh, to the Indian ruler Muammad Qub Shh (r. 1020-103/1611-21626)). Astarbd, Fawid (Qum: Muassasat al-Nashr al-Islm, 1424/[2003]), 326 (including the adth of lifted-liability (adth al-raf), the adth of barred liability (adth al-ajab), and others, discussed below). For the full text of these traditions, see Appendix. 412
105 104

1. Ambiguity between Law and Fact, Obligation and Prohibition Islamic legal texts outline several types of shubha (ambiguity or doubt) that continuously arise in the lawfrom questions of law to questions of fact.106 Here, we are concerned with questions of law, as jurists struggled to work out how far the scope of the innocence presumption would run. The options entailed two basic types of legal rules, obligations and prohibitions, which jurists treated as two separate spheres of legal ambiguityuncertainties regarding obligations (shubaht wujbiyya) and uncertainties regarding prohibitions (shubaht tarmiyya).107 The latter was germane to the question of doubts and ambiguities that surface in discussions of udd laws and the udd maxim. The presumption of innocence runs with both spheres, according to rationalists, but is restricted to the former (i.e., uncertainties regarding obligations), according to traditionists. Why the difference? The divergence has to do with fundamental differences about the concept of ambiguity and the scope of juristic authority to resolve it. For both traditionists and rationalists, ambiguities regarding obligations arise when no clear revelatory text
106 See e.g., Muaffar, Ul al-fiqh, 4:314-15 (distinguishing legal ambiguity (shubha ukmiyya: situations where the import of the text is unclear or it is unknown how it applies to a certain set of facts) from factual uncertainty (shubha mawiyya, including mistake and ignorance)); cf. Ab l-Qsim al-Qumm, Qawnn al-ul ([Tabriz: s.n.], 1275/[1858-9]), 269-70; Muammad Kim al-Khursn, Kifyat al-ul (Qum: Muassasat al-Nashr al-Islm al-Tbia al-Jama al-Mudarrisn, 1424), 387; Bihbahn, Risla, 403-04 (noting that the categories are also called shubha f nafs al-ukm (i.e., shubha ukmiyya) and shubha f arq al-ukm (i.e., shubha mawiyya)) (quoting al-urr al-mil). Some traditionist jurists identify a separate category of shubha between those two of intrinsic ambiguity (qism khar mutaraddid bayn al-qismayn ... ishtibhuh bi-sabab amr dht), e.g., al-urr al-mil, as noted in Bihbahn, Risla, 403; other rationalist jurists identify separate categories of ambiguity arising from coercion and mistake, e.g., Dmd, Qavid, 4:54-61 (shubha-yi khaa and shubha-yi ikrh). For further definitions and comparisons with Sunn terminology, see Chapters 3 (discussing factual and legal ambiguity in juristic fiqh writings as it relates to the udd maxim) and 4 (discussing the final category, which encompasses the doubts that arise in matters of evidence and procedure in the courtroom of the criminal trial, when a judge must determine whether the crime is established or whether the accused is culpable.) (In that context, coercion for example serves as an affirmative defense to remove culpability for a completed crime.)
107

See Muaffar, Ul al-fiqh, 4:314-15; Barn, Ala, 230. 413

imposes an obligation. Absent such a text, both groups hold that the law presumes the agent free from duty, because only revelation can impose obligations. Traditionists argue on the basis of their textualist doctrine that all lawswhether of obligation or prohibitionproceed directly from the text; absent a clear textual obligation one need not, indeed must not, act.108 Rationalists agree with this textualist requirement, but add that punishment for acts of omission in cases of ambiguously worded putative rules would be unjust. To suppose the opposite would violate the textualist doctrine as well as rational principles of legality and capacity.109 In the realm of putative obligations then, traditionists and rationalists agree that no liability attaches without a clear statement of law imposing an obligation. The result, if not the reasoning, on whether the innocence presumption applies to this type of ambiguity is relatively uncontroversial: both camps agree that it does. The major controversy enters the field where the uncertainties involve prohibitions, which of course encompasses udd laws. The rationalist-traditionalist debates here are a key to understanding the validity and scope of the udd maxim, because they provide the backdrop for discussions about dealing with ambiguities related to the prohibitions of criminal law. For rationalists, because the principles of legality and capacity apply across the board, they read the text to require application of
108 See, e.g., Qumm, Qawnn, 266 (noting that the alat al-bara may be also called a alat al-nafy, more clearly conveying the sense of non-liability or the absence of a legal rule, that is, to indicate that there can be no punishment for acts of omission in the absence of a clear text imposing an obligation); cf. Abd Allh b. Muammad al-Fil al-Tn, al-Wfiya f ul al-fiqh, ed. Muammad usayn al-Riaw al-Kashmr (Qum: Majma al-Fikr al-Islm, 1412/[1992]), 178. Some traditionist jurists, however, go so far as to say that the innocence presumption has no application in any matter of lawwhether rules of obligation or prohibitionbecause every act must be based on clear textual evidence, and otherwise a precautionary stance of suspension of action (itiy) is due. Astarbd, Fawid (198- ed.), 138.
109

See, e.g., Bihbahn, Risla, 350 (joining the two, i.e., qub al-iqb bi-l bayn and qub al-taklf m l yuq); Anr, Rasil, 151. 414

the innocence presumption to prohibitions just as they do to obligations. Without this presumption, the possibility of an obscure-but-present prohibition lurking behind the textual ambiguity should trigger certain precautionary measures to help individuals avoid transgressing the laws prohibitions. That lurking possibility is precisely what leads traditionists to reject the rationalist presumptions and to avoid ambiguity altogether. Astarbd explained why in his parry to the rationalist claims. 2. Ambiguity and Avoidance: One Right Answer as Text To begin with, Astarbd complains that rationalists do not truly take the revelatory texts as their starting point. If they did, they would conclude, as have traditionist-textualists, that the law itself requires the avoidance of ambiguity. Instead, Astarbd adds, rationalist-pragmatists attempt to attack ambiguity with weak and unwieldy tools like a broad innocence presumption, expansive readings of the udd maxim, and reliance on other rational analyses of the law that diverge from the dictates of the text. Astarbd and fellow traditionists subscribe to a monist theory of law, by which there is one right answera uniform law for which there is, in the mind of God, a single and definitive value to the legal status of any given act.110 Accordingly, human beings subject to this law are required to follow it by adhering to the clear areas of legality and avoiding the clear areas of illegality. Revelation spells out the contours of each. As one adth reports: The lawful is clear, the unlawful is clear, and there is ambiguity (shubaht) between the two; so whoever avoids ambiguity will be saved from violating
110 Astarbd, Fawid (198- ed.), 106; al-urr al-mil, al-Ful al-muhimma, 3rd ed. (Qum: Maktabat Barat, [198-]), 180-99. 415

prohibitions, and whoever operates in the realm of ambiguity may commit a prohibited act and thereby [fall into] self-destruction unknowingly.111 Thus, before revelation, it would have made sense to recognize a broad presumption of innocence, for humans would have been operating in a world without access to certain knowledge of the law.112 They would have had no choice but to appeal to their own faulty reasoning to merely approximate moral conduct. But after revelation, these presumptions no longer apply because the actual laws have been revealed to govern all situations, even if (those laws) have not always been preserved (unambiguously).113 After revelation, there is no need for so-called objective moral values; indeed they do not exist. As Astarbd puts it, objective morality and immorality is one thing; objective obligations and prohibitions are something else.114 The trigger for legal-moral liability is revelation (al-sam min al-shri), and humans will never be held accountable on the basis of reason alone (istiqll al-aql).115 So far, traditionists have painted a rather black and white picture of legality: matters are either lawful or unlawful, as spelled out in the revelation. But what should be done about the admittedly gray area in betweenthe hazy realm of ambiguity? Traditionalists recognize that the human mind does not always encompass what is in the mind of God; for them, the true law is known perfectly only to God and those whom
111 Astarbd, Fawid (2003), 325. For the tradition, see Kulayn, Ul al-Kf, 1:68; Bukhr, a, 1:20; see also ibid., 3:52; Muslim, a, 3:1219; Tirmidh, Sunan, 2:340.
112

For a treatment of the debate concerning whether there was moral-legal accountability in the period prior to the Prophet, see A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (Albany, NY: State University of New York Press, 1995). Ysuf al-Barn (d. 1186/1772), al-adiq al-nira (Najaf: Dr al-Kutub al-Ilmiyya, 1377- /[1957- ]), 1:75 (cited in Barn, Ala, 310). Astarbd, Fawid (2003), 328 (hun masalatn al-usn wal-qub al-dhtiyn wa- l-wujb wal-urma al-dhtiyn). Ibid., 330. 416

113

114

115

He guides. Yet, ambiguity in the human mindwhether a legal expert or laypersonis not an invitation to appeal to reason. Instead, the Qurn unambiguously instructs people to obey God and His messenger and those in authority over you and to appeal to them for guidance on resolving any disputes.116 Even rationalists must recognize this much.117 The question is how. Unsurprisingly, Astarbd and his cohorts look to the text. They often cite the adth dividing the world into legal, illegal, and ambiguous (adth al-tathlth) and interpret it to mean that all areas of ambiguity are off-limits to jurists and laypeople alike. Both groups should avoid whatever is not mentioned in the revelatory texts in order to avoid committing acts that are potentially illegalsince the true legal status of areas of silence of the law is unknown.118 To them, the adth directive is not just advisory but mandatory. That is, jurists must avoid ruling on matters of ambiguous import (tawaqquf), and laypeople should avoid all acts that have ambiguous legal status out of precaution (itiy).119
116 Ibid. (citing Qurn, 4:59 (y ayyuh lladhna man a llha wa-a l-rasla wa-ul l-amri minkum fa-in tanzatum f shayin fa-ruddhu il llhi wal-rasl)). For similar citations, see Barn, Ala, 311 (citing Qurn, 16:43 and 21:7 (If you do not know (about a matter), ask those who know [i.e., to whom God sent revelation before]: fa-sal ahla l-dhikri in kuntum l talamn.).
117 Indeed, rationalist jurists cite these same verses, but interpret them differently, as discussed below. See, e.g., Anr, Farid al-ul, 205. 118

Al-urr al-mil, al-Ful al-muhimma, 180-99; Astarbd, Fawid (198-), 106 (cited in Barn, Ala, 311). For additional arguments, see Barn, Ala, 311.

119 Astarbd, Fawid (2003), 325. Traditionist legal literature often uses tawaqquf and itiy interchangeably, as when Astarbd defines the obligation of tawaqquf as avoiding every positive act for which we lack assurance about its legality (tark kull fil wujd lam naqa bi-jawzih), and Tn defines itiy as avoiding matters for which there is a potential that the legal status is one of prohibition rather than another of the five possible rulings [ obligatory, encouraged, neutral, discouraged] (tark al-amr almutamil lil-urma wa-ukm khar min al-akm al-khamsa), see Barn, Ala, 309 note 1 (citing Musin al-Kim, Shar al-Wfiya). In other words, whenever there is the potential that something is prohibited, itiy requires one to assume it is prohibited and avoid it no matter what other possibility may exist. For similar definitions, see Barn, Ala, 321 (citing Majlis, Mirt al-uql), 309 (citing Qumm, Qawnn, 2:17 (al-tawaqquf huwa l-sukt an al-fatw f l-wqia al-kha wa-adam al-idhn bil-malbiyya aw almabghiyya)). In the more technical and developed usage of rationalist jurists, a distinction is made.

417

Traditionists draw further support from several other reports that call on Muslims to avoid doubt altogether, they say, imposing an explicit obligation of precautionary avoidancethe precaution principle. For example, there is the tradition known in both Sh and Sunn circles advising Muslims to avoid what makes you doubt for that which does not.120 Read in juxtaposition to the above report, one must conclude logically that doubtful matters cannot fall into the first two categories of clear statements of law, so they must fall into a third category of ambiguity, which one must avoid. This conclusion amounts to an absolute command covering all matters of law, and cannot be limited or subordinated to an innocence presumption as the rationalists argue.121 To claim otherwise, Astarbd maintains, would be to make the third category of the above adth a nullity; and that would violate basic rules of textual construction.122
Tawaqquf refers to the juristic obligation to avoid pronouncing a definitive ruling in cases of ambiguity (adam iltizm bi-ukm min al-akm al-khamsa fm idh lam yaqum dall mutabar al ithbtih), and itiy refers to the individual obligation to avoid acting (wafa amaliyya) on a matter on which the legal ruling and/or the factual matter of the situation are ambiguous. See Barn, Ala, 309; cf. Bihbahn, Risla, 396 (noting that Akhbr adth supports for the precaution principle may, at most, lend credence to the idea that avoidance on the part of the jurist (al-tawaqquf wal-tark) is the safer way, but does not require suspension of the juristic interpretive process or avoiding certain acts on the part of the layperson out of an [exaggerated] sense of precaution (itiy)); cf. Anr, Rasil, 151 (discussing and rejecting the Akhbr position of wujb al-itiy bil-tark).
120

Barn, adiq, 1:76 (interpreting this adth to mean a requirement of itiy). For a discussion of the adth, see Ibn ajar, Fat al-br, 5:196 (noting that it appears in Bukhr, Tirmidh, Nas, Amad b. anbal, et al.); Anr, Faraid, 209 (with variations, noting that Shahd II mentioned this verse, copying it from Sunn sources). Ysuf b. Amad al-Barn, al-Durar al-Najafiyya min al-multaqit al-Ysufiyya (Beirut: Sharikat Dr alMuaf li-Iy al-Turth, 2002), 24.

121

122

Astarbd, Fawid (198-), 106. Cf. Ibn azm, Ikm, 6:745 (arguing that the bi-partite and tri-partite traditions are expressing the same idea, such that the latter should be read in light of the former to mean that those confused about the status of an act should avoid it). While Astarbd is appealing to one common pragmatic canon of construction (compare the American legal principle, the rule against superfluity), Ibn azm here is recognizing another textual canon premised on reading texts together as if a part of a contiguous law (compare the American legal principle, the whole act rule) to avoid reading legal texts as conflicting with one another. See, e.g., Eskridge et al., Legislation (2001), Appendix B. But see Barn, Ala (citing adr al-Dn al-Qumm, Shar al-Wfiya). adr al-Dn al-Qumm notes that fa-alaykum al-itiy refers to taking precautions on issuing rulings about areas of law where knowledge 418

Such traditionist arguments for mandatory precaution in the face of ambiguity abound.123 Some identify early cases wherein the practice of the Imms themselves suggests that they advised precaution. In one case, two people had violated a ritual rule together and knew that recompense was due for the violation, but were unsure whether the amount of the recompense due was to be shared between them or whether each was obliged to pay the full amount. The fifth Imm, Muammad al-Bqir, clarified that each owed the full amount. And upon further deliberation, he instructed his followers in future situations of doubt to adopt a precautionary stance until you are able to inquire about the correct ruling. Clearly, for traditionists, this makes precaution mandatory (wujb al-itiy or wujb al-tawaqquf) in cases of ignorance and inability to inquire about the law.124 Read in this light, the adth cited by Ibn Bbawayh should be understood merely to permit supplication in Persian. It was no endorsement of a broad innocence presumption; instead, it supports only the notion that legal-moral liability (taklf) does not attach to anyone until and unless revelation has reached them (bad bulgh alkhib), Muslim jurists being agreed that scripture has come in complete form.125 In other words, the adth indicates that presumptions of innocence refer to the legality of
is clearly present and possible. But if, after a duly diligent attempt to ascertain the law, ambiguity remains, then this directive does not apply because of the adth instructing people that the law is flexible when it comes to areas of lack of knowledge or assurance (al-ns f saat m lam yalam, on which, see Appendix). In addition, even if the phrase fa-alaykum al-itiy was taken literally, at most it should be read as advisory to avoid fundamental conflicts with other legal texts.
123

The fullest list that I have found is in al-urr al-mil, Wasil al-Sha, 18:111-29 (collecting sixty adth in support of the obligation of the precaution principle). Barn, adiq, 1:76 (fa-alaykum bil-itiy att tasal anh); cf. Astarbd, Fawid (2003), 325 (defining wujb al-tawaqquf as avoiding any positive act for the legality of which we have no (textual) assurance (tark kull fil wujd lam naqa bi-jawzih)). Astarbd, Fawid (2003), 330. 419

124

125

things before the completion of revelation; but afterward, revelation contains the rulings and governs issues of legal status, and there is no longer any room for a broadbased presumption of innocence as rationalists maintain.126 The leading post-Astarbd traditionist, al-urr al-mil, explains in detail that this adththat everything is permissible (mulaq) unless specifically prohibited bears multiple interpretations: First, the text may be interpreted to be an instance of dissimulation (taqiyya). Sunns (al-mma) [by contrast] take this presumption as authoritative (ujjiyyat al-al). But this position [and their interpretation, to the extent that it supports the innocence presumption] is challenged by the strength of the preceding [traditions, indicating the primacy of the precaution principle]. Moreover, this single-source report cannot trump widely defused reports [that require precaution]. Second, the text may be interpreted to apply specifically to revelatory texts (al-khib al-shar khatan). That is, any (statement) contained in revelatory texts (kull shay min al-khibt al-shariyya) is to be taken in an absolute and general sense (al ilqih wa-ummih) unless there is also [another text that outlines] a prohibition qualifying some matters [as exceptional] and removing [them] from the purview of the general instruction. Take, for example, the adth that all water is pure until you know that it has been made impure. This is to be understood as a general proposition (al ilqih). [At the same time,] there is a prohibition (in the law) against using each of two containers if one has been made impure but an individual is confused about which one; this (second) ruling has qualified (the matter and) taken it out of the purview of the general instruction (taayyana taqyduh bi-ghayr hdhihi al-ra) [such that in such situations, one cannot presume that water is pure even when there is no certain knowledge about which of the two containers is impure]. For this reason, adq [Ibn Bbawayh] cited [the above adth] (specifically) to indicate the permissibility of performing the supplication in Persian, because the instruction to perform supplication in prayer was general and absolute (mulaqa mma), and he was aware of no prohibition on performing the supplication in Persian that would remove [that possibility, i.e., praying in Persian] from the purview of the general instruction.
126 Astarbd, Fawid (198-), 160. Cf. See al-urr al-mil, Wasil, 18:127; Barn, adiq, 1:49; idem, alDurar al-Najafiyya, 34. 420

Third, the text may be interpreted specifically to apply to matters other than those contained in the revelatory rulings themselves (altakhs bi-m laysa min nafs al-akm al-shariyya), though they may relate to legal subjects and related areas [governed by the divine law], e.g., if a person doubts whether the grants (jawiz) of an unjust ruler (lim) are in fact illegal (maghba, lit.: usurped), [they are to presume that they are not unless the divine law specifically states that they are]. Fourth, [the adth may be interpreted to mean] that the prohibition mentioned refers to both general and specific types of prohibition. We are aware of the general prohibition (al-nahy al-mm balaghan) against operating in the realm of ambiguity (irtikb alshubaht) in cases of uncertainty about the law (f nafs al-akm). [We also are aware] of the command to instead practice precaution (al-amr bitawaqquf wal-itiy) regarding [legal uncertainties] and any matter on which the text is silent (f kull m l na fh). [In other words, legal agents are on notice that there is no leeway for operating in the realm of clear prohibitions or uncertainty about prohibitions with respect to the text of the law; accordingly, they should regard the statement in question, that everything is permissible unless otherwise prohibited, to be restricted to issues of fact rather than issues of law.] Fifth, [the adth may be interpreted] to refer specifically to the period before the completion of the law [as contained in revelation] (makhan bim qabl kaml al-shara wa-tammih). After [revelation], the innocence presumption does not apply (fa-amm bad dhlika fa-lam yabqa shay al ukm al-bara al-aliyya). Sixth, [the adth may be interpreted] to refer specifically to those who are unaware of the adth (spelling out) the prohibition of operating in the realm of ambiguity (man lam tablughhu adth al-nahy an irtikb al-shubaht) or the command to practice precaution (al-amr bil-itiy) cited above. Holding such a person liable (taklf al-ghfil) is contrary to both reason and revelation (istila aqlan wa-naqlan). Seventh, [the adth may be interpreted] to relate specifically to matters for which there is no reason to believe that a rule of prohibition might apply (bi-m l yutamal al-tarm). For example, [suppose that] a matter is known to be permissible, but then there is doubt as to whether it is obligatory. In that case, [the matter] is permissible (mulaq, or: the ruling of permissibility applies generally) until a text is found that prohibits not doing it [i.e., that obligates it]. This is because the implication of the traditions [cited above] does not call for applications of the precaution principle upon the mere possibility of a ruling of obligation, even if that (itiml al-wujb) might be the preferred position
421

wherever a ruling of prohibition is not at issue (adam wujb al-itiy bimujarrad itiml al-wujb wa-in kna rjian aythu l yutamal al-tarm). Eighth, [the adth may be interpreted] to apply specifically to significant matters that affect the entire [or at least a large portion of the] community (al-ashy al-muhimma allat taumm bih l-balw); and where it is known that, if there were a ruling contrary to the existing (known) laws, [the ruling] would have been [clearly] transmitted (law kna fh ukm mukhlaf lil-al la-nuqila). This much is understood from Als statement: Know, oh son, that if there were another God, His messengers would have come to you, and you would have seen the effects of His dominion.127 All of this is to demonstrate that the adth on which rationalists so heavily rely to provide textual support for their innocence presumption is not so clearly in support of that presumption after all. By listing no less than eight alternative interpretations for the text, al-urr al-mil is seeking to prove the generality and superiority of the precaution principle to the innocence presumption. In all but one of his alternate views of Ibn Bbawayhs adth, he constructs arguments that limit its permissive importto the extent that it might support an innocence presumptionby interpreting it to refer to specific situations. (Accordingly, for him, the innocence presumption applies only to doubts about prohibitions on factual grounds, not legal ones.) This is typical of traditionist arguments against rationalist interpretations; where rationalists see generality, traditionists see specificity. As in other contexts, traditionists argue that all the rationalist so-called textual proofs for general principles of law (expressed in legal maxims) typically refer to specific factual matters; for them, any general import is related to factual ambiguity not legal ambiguity.128
127 Al-urr al-mil, Wasil al-Sha, 18:127-29 (emphasis added).
128

Cf. al-urr al-mil, al-Ful al-muhimma, 235 (arguing that many of the adths indicating the permissibility of acts in cases of doubt until a prohibition is known relate to shubaht mawiyya); see also Astarbd, Fawid (198-ed.), 160; Barn, adiq, 1:49; idem, al-Durar al-Najafiyya, 34; al-Fawid alsiyya, 253. 422

The one place where al-urr al-mil does not limit the adth in this way, he attacks its validity altogether; and this was the argument with which he began. In his opening salvo, he went back to an old principle that Ibn Bbawayh himself had mentioned to explain why traditions may appear to conflict: some of them are not to be acted on literally, as the Imms may have made the statements out of a known practice of dissimulation (taqiyya), appropriate for certain situations when dealing with the majority Sunn community. This sense is easy to conceive, he says, because the adth is both anomalous and weak next to the overwhelming evidence of the precaution principle. Interestingly, al-urr slightly reformulates the traditionist position that precaution means avoidance of questionable acts on the basis that they might be prohibited, to mean avoidance of ambiguity altogether. In fact, the phrase he uses highlighted aboveis commission of ambiguities (irtikb al-shubaht), which is a phrase typically employed for crimes or sins. He is equating ambiguity with the feared specter of crime or sin to the point that he has linguistically and conceptually elided the latter into the former such that the precaution principle requires avoidance of ambiguity itself. Furthermore, any reliance on a so-called correlation between reason and revelation as a basis for moral-legal accountability is to be rejected even as a logical matter. Consider that the law does not prohibit many objectively immoral acts (alqabi al-aqliyya) nor does it obligate all objectively moral acts.129 That is enough to conclude that there is no objective morality, much less a one-to-one correlation between the two. Rationalist attempts to establish some correlation between
129 Astarbd, Fawid (2003), 328. 423

revelation and reason and to read into the law a broad innocence presumption are misguided precisely because they diverge from the text. Such broad presumptions have no textual basis (na), and this automatically bars them from consideration in the law. 130 Like their earlier counterparts, the new traditionists emphasize certainty and a single right answer, both of which they locate in text; as such, they continue to place a premium on the authenticity of adths as a measure for the authority and content of the law. They cite the Qurnic command, And do not follow that about which you have no knowledge; for you will all be questioned about matters of hearing, of sight, and of the heart.131 They point to a adth stating that one of Gods rights is that human beings speak only from knowledge and that they suspend action when they have no knowledge. 132 And they reference several other adths advising people not to reject certain directives simply because they dont understand the reasoning of the reports.133 The rationale for legal rules is irrelevant; all that matters is whether the report is authentic. These authentic texts spell out rules requiring precaution in the face of ambiguity (regardless of whether this stance accords with reasonwhich could serve as a proxy for individual whim). Avoiding a questionable act allows one to avoid the ambiguity and along with it, any possible culpability from violating a lurking prohibition.
130 Ibid. (noting that adopting these presumptions would be on the basis of a lack of knowledge, or worse, mere speculation (ann), which deference to divine sovereignty does not allow); Barn, adiq, 1:75 (same).
131

Qurn, 17:36 (wa-l taqfu m laysa laka bihi ilmun inna l-sama wal-baara wal-fuda kullu ulika kna anhu maslan) (cited in Kulayn, Ul al-kf, 1:50). See also Barn, Ala, 310. Al-urr al-mil, Wasil, 18:112; see also Kulayn, Ul al-kf, 1:50 (cited in Barn, Ala, 310). See, e.g., Astarbd, Fawid (2003), 325-26 (listing adths). 424

132 133

3. Interpretive Process: Textual Canons and Constrained Discretion It is clear from the foregoing discussion that, for traditionists, ambiguity is emphatically not an invitation for juridical activism based on reason; it is instead a prompt for restraint. The sometimes-obscure nature of the revelatory texts is precisely why God sent Prophets and Imms to clarify the law. Their task was to remove any ambiguities in the law, and they performed this task well when they were alive and present. Astarbd explains that when God says, we will guide to our path(s) those who strive for Our cause, He is giving assurance that He will clarify (read: had clarified) the law to a select group seeking it and prevent them from making errors in delivering the message.134 Moreover, we know precisely the category to which this verse applied: the Prophet and the Imms, to whom all necessary clarifying knowledge was given in matters of both creed and law.135 So if ambiguity remains, it is not because the law has not been clarified. Rather, it may simply be that the individual layperson or jurist is unable to understand the clarifying statements contained in the traditions, that they do not have access to the full text (given that many works were lost with the Mongol invasions and intermittent persecution of the Sha), or that the jurist simply was not exhaustive in his research and deliberation.136 In a retort to the rationalist claim that ambiguity tolerates juridical resolution rather than requiring avoidance, Astarbd holds that failure to discover

134 Astarbd, Fawid (2003), 321, 329-30 (discussing the primordial day of eternity (yawm alastu), see Qurn, 7:172, as a time when obedience was obligated through Gods presentation of Himself to all humankind and solicitation of an acknowledgement from them that He was the Lord to whom they owed obedience).
135 136

Ibid., 321 (al-aqid wal-aml). Ibid. (citing Qurn, 29:69: wa-lladhna jhad fn la-hadaynhum subulan). 425

the rule does not mean that the rule does not exist.137 Failures to understand the texts or loss of them do not belie the basic fact, established above, that all laws must proceed from the texts. This understanding guides the traditionist orientation to the innocence presumption, the udd maxim, and all other canons that arise in the interpretive process. To be sure, traditionists do not reject all canons outright; they reject only maxims for which they perceive no textual basis. We have discussed reasons why Astarbd and other new traditionists reject a broad reading of the innocence presumption despite the textual basis for it to which rationalists point in Ibn Bbawayhs collection: the supporting adth conflicts with the mass of traditions indicating otherwise, so it must be interpreted narrowly. A similar analysis applies to the udd maxim. Again, Ibn Bbawayh was the firstand onlyscholar to record the maxim in a canonical collection.138 This gave it a textual basis that traditionists and rationalists had to absorb. The difference was how each camp would interpret the text based on its members own prior commitments surrounding the innocence presumption. Al-urr al-mils treatment is typical of the traditionist position. He cites it in Wasil al-Sha, his massive collection of traditions that doubled as his fiqh compendium in line with traditionist jurisprudence. Rather than the standard version, avoid udd (punishments) in cases of doubts and ambiguities, he prefers the version that adds,
137 Ibid., 350.
138

Recall Ibn Bbawayhs earlier parallel project in Faqh, which became a canonical collection for Sh jurists; likewise, al-urr al-mils Wasil, also written by a traditionist jurist, has become the most relied-upon adth collection for Sh jurists. The difference is how the text is used; whereas traditionists argue that the texts are the law, rationalists take them as a starting point. 426

but there is to be no intercession, nor bail, nor oaths in add (proceedings). Ibn Bbawayh had cited both.139 In the longer version, the text itself notes limitations to udd avoidance. It cautions against circumventing udd laws through common mitigating strategies of intercession, bail, or even oaths (of innocence). At least one of these strategiesclaims of innocencehad been understood by rationalist jurists like al-Allma al-ill as giving rise to add-averting doubts, in line with a general rationalist tendency to construe the maxim broadly. By contrast, al-urr al-mil and other traditionists rejected the innocence presumption for uncertainties regarding all prohibitions, especially udd, and would require any reading of the udd maxim to line up next to the overwhelming spate of texts requiring precaution.140 Together, these presumptions lead traditionists to give the maxim as stingy a reading as possible. Al-urr does not therefore even remotely entertain the idea that the maxim requires udd avoidance in cases of doubts or ambiguities. He omits it completely from the traditions governing udd laws generally. Instead, he cites it to support udd impositionthat there can be no intercession or other maneuvers to avoid udd punishment once a crime has been established. Throughout traditionist discussions of substantive criminal law, the udd maxim plays no role.141 Where it is mentioned,
139 The longer version, cited by al-urr, is in Ibn Bbawayhs Faqh, 4:53 (idra l-udd bil-shubaht wa-l shafa wa-l kafla wa-l yamn f add), and attributed to the Prophet, without an isnd. Elsewhere, he records the standard version, Avert udd punishments where there is doubt or ambiguity (idra ludd bil-shubaht), this time attributed to Al, without an isnd. Ibn Bbawayh, Muqni (Qum: Muassasat al-Imm al-Hd, 1994), 437. But this version is ignored by traditionists and taken up by rationalists.
140 141

See al-urr al-mil, Wasil, 111-29 (listing sixty adth supports for the precaution principle).

Traditionists tend not to write works on fiqh topics, as the adth are the law. But they organize these adths around legal topics, which serves as indication of their fiqh. In al-urrs Wasil, the udd maxim does not appear in his section on criminal law as it does frequently in rationalist chapters on criminal law; instead it appears in the section on judicial procedure (qa)to advise judges to be vigilant in imposing udd punishments. Compare al-urr al-mils section on criminal law (esp. muqaddamt aludd) with his section on judicial procedure. Al-urr al-mil, Wasil, vol. 18. 427

traditionists invoke it to support udd imposition, as did al-urr al-mil, but more often, traditionists tend to omit mention of the maxim altogether. Likely, the maxim is more trouble than it is worth. In the traditionist theory of ambiguity, the first part of the adth (the standard version of the maxim)avoid udd punishments in cases of ambiguitiesseems to have no meaning. They have already decided that innocence or avoidance cannot apply to uncertainties about prohibitions (i.e., legal ambiguity), and in any case, udd laws are by definition the clear statements of prohibitions. So if anything, ambiguities here would mean matters of fact (e.g., issues of evidence, mens rea) and would not apply to the texts of udd laws. But there is no need to even make that determination, as the precaution principle has already obligated avoidance of acts that one suspects to be prohibited because of confusions about facts. Alternatively, traditionists could read udd to refer to acts that have the potential to later proof to be instances of prohibited acts (e.g., marrying someone with whom there is the remote suspicion that there are close familial ties), with the command to avoid udd directed to laypeople to avoid those remotely questionable acts whenever they have doubts. This meaning can fit with the traditionist requirement of precaution in such instances; but then it would be redundant, or else one would have expected it to be employed as yet another sort of support for the precaution principle. Yet no traditionist seems to have understood it as such. In the sixty traditions that al-urr al-mil compiled in what seems to be his attempt at a comprehensive listing of all traditions supporting the precaution principle, the udd maxim does not make his list.142
142 See al-urr al-mil, Wasil, 111-29. 428

In the end, the inclusion of the innocence presumption and the udd maxim as adths in Ibn Bbawayhs collection meant that al-urr al-mil and other traditionists had to accept both as authentic. But their emphasis on the right answer as text led them to reject the innocence presumption for uncertainties regarding prohibitions, and to accord primacy to the precaution principle for all ambiguities generally; accordingly, they severely curtailed the interpretation and application of problematic textual traditions like the udd maxim and the other adth that everything is permissible cited by Ibn Bbawayh. In other words, traditionists did not regard the maxim with the same liberal eye as that of the rationalistsits cameo appearance in their adth collections notwithstandingbecause they rejected the innocence presumption that drove a wide application of the maxim. Where rationalists read the udd maxim broadly to accord with their reason-accommodating theories of law and ambiguity, traditionists read it narrowly to accord with their own. Traditionists regarded other interpretive maxims similarly. They did not reject maxims outright, as has been supposed.143 They accepted maxims provided they were rooted in some textual ground and then interpreted them narrowly in the context of their emphasis on textual authority, their narrow theory of ambiguity, and the primacy they accorded to ideas of certainty and one right answer. From these maxims came the principles of their textualist jurisprudence, with the precaution principle at its core. In

143 Gleave has noted that Astarbd was not devoid of hermeneutic awareness, and required the scholar to be able, not only to know adth but also to understand the procedures relating to itiy [precaution]. But that awareness was limited, inasmuch as Astarbd glossed over or ignored major jurisprudential issues treated by rationalist jurists, such as the relationship between mufts (in cases of disagreement between them over the import of traditions) and how laypeople recognize a true adth expert (and hence legitimate muft). See Gleave, Scripturalist Islam, 86-88. 429

addition to that principle, some examples of other interpretive maxims that Astarbd identified include the following: If the legal and illegal mix, the illegal takes precedence.144 Any matter that has legal and illegal aspects is legal unless you know that it is illegal, in which case you should avoid it.145 Any doubt [that befalls a person] after completing a matter is to be ignored.146 It is improper to cancel out certainty by way of doubt; it can only be canceled by way of another certainty.147

Thus, traditionists accepted maxims, but even these text-based maxims did not easily hang together, at least not for rationalist critics. As we will see, this fact fueled the response of the rationalists, who objected that these maxims, if taken at face value, were self-contradictory and would lead to an incoherent legal system if construed without any rational bases and without a more robust theory of dealing with doubt and ambiguity. * * *

Astarbd and al-urr al-mils writings reflect precepts of the old traditionist school: reliance on the text of traditions as the only authoritative sources of law next to the Qurn. They completely rejected the use of rational analysis in construing texts and deriving legal norms; they likewise rejected the basic
144 Astarbd, Fawid (2003), 313 (citing the adth: idh khtalaa l-all wal-arm, ghalaba l-arm (recorded in Ibn Ab Jumhr, Awl al-ll, 3:466, no. 17; s, Tahdhb al-akm, 1:29, no. 72)).
145

Ibid. (citing the adth: kull shay fh all wa-arm fa-huwa lak all att tarf al-arm bi-aynih fatadauh (recorded in s, Tahdhb al-akm, 9:79 (with slight variations)).

Ibid. (citing the adth: al-shakk bad al-inirf l yultafat ilayh (recorded in s, Tahdhb al-akm, 2:248, no. 31)).
147 Ibid. (citing the adth: laysa yanbagh lak an tanqu yaqnan bi-shakk abadan wa-innam tanquuh bi-yaqn khar (recorded in s, Tahdhb al-akm, 1:8, no. 11)).

146

430

presumptions of law that rationalist jurists had devised as lacking in textual foundation. Moreover, Astarbd had pointedly honed in on the problem of uncertainty and ambiguity that, in their view, necessarily arose in the use of Aristotelian logic, the rationalists prime tool in their exercise of reason. That fact alone required appeal to the authority of the unassailably reliable traditions, he argued, and he was enormously successful in making his casethat is, until his rationalist opponents counter-attacked. The first decisive move came from Astarbds rationalist critic, Bihbahn (d. 1206/1791-2), whose camp dealt a final blow to traditionism in the mid-19th century through the pen of Murta al-Anr (d. 1281/1864). D. Rationalist Riposte: Reason after Revelation as the Right Answer Rationalists object to the traditionist attempt to characterize them as atextualist even as they insist on incorporating significant rational elements in their pragmatic jurisprudence. In the same spirit as the quip amongst American legal scholars that we are all textualists now, in Islamic law too, rationalist jurists maintained that their process of interpretation began always with the text.148 In defense and elaboration of their interpretive scheme, they start with the Qurn and Sunna before moving to arguments about juridical consensus and other rational arguments; in so doing, they follow and reinforce the formal hierarchy of Islamic legal
148 See Jonathan T. Molot, The Rise and Fall of Textualism, Columbia Law Review 106 (2006) 1, at 43; William N. Eskridge, All about Words, Columbia Law Review 101 (2001): 990-1106, 1090 (noting that pragmatist and textualist jurists alike begin first and foremost with the text); Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, Boston University Law Review 78 (1998): 1023, 1057 (1998) (In a significant sense, we are all textualists now.). This is of course drawn from an earlier observation that we are all realists now, in recognition of mainstreaming of the idea that judges and lawyers openly consider policy or political implications of legal rules and that legal opinions reflect certain political, economic, and historical contexts. See Dennis Patterson, A Companion to Philosophy of Law and Legal Theory (Cambridge, MA: Blackwell Publishers, 1996), 261. 431

sources outlined in the developed works of legal theory. Theirs is an attempt to create a system that is at once coherentwith respect to existing legal texts and juristic precedentsand provides prospective guidance for dealing with new issues. After Astarbds damaging traditionist blows, the challenge for the rationalists was to reassess their own jurisprudence and approach to ambiguity in light of the textualist attacks. Toward that end, they revisited the revelatory texts as well as the question of reasons role in construing them. They concluded, all the more strongly, that both supported the innocence presumption, a key aspect of which in contemplating potential prohibitions was a permissibility presumption (alat al-iba), that all acts are presumed permissible (or legal) unless proven otherwise. Moreover, they reformulated the entire jurisprudential structure to include set interpretive canons designed to address ambiguities when the text ran out. In the end, this restructuring led to what has been dubbed rationalisms victory against the traditionalist challenge. It also undergirds the expansive room for the udd maxim and other substantive maxims that have the ring of authority in the education and debates surrounding the application of Sh law to this day.149

149 For an influential textbook-law treatise, which includes mention of the udd maxim, see Muammad asan Najaf, Jawhir al-kalm fir shar shari al-Islm, 41:157; cf. Al Muammad, Naqd-i skhtr-i qnn-i mujzt-i Islm (A Critique of the Structure of the [Iranian] Islamic Penal Code), Fiqh va uqq 1, 1 (2004), 157-74 (criticizing Irans current Penal Code for, among other things, codifying rules without laying out general principles such as the udd maxim). 432

1. Defensive Theories of Innocence and Interpretive Discretion a. In Defense of Presumed Innocence To root the innocence presumption in text, Anr and other rationalists point to several Quranic verses and traditions.150 Three verses in particular double as supports for the principles of legality and capacity that rationalist had previously discussed in terms of pure reason. First is the verse, God does not hold people accountable except for what He has given them (or: what is within their capacities to act upon): L yukallifu Allhu nafsan ill m th) (Qurn, 65:7). Anr notes that the general meaning of the verse is clear, though the phrase what He has given may be open to interpretation. If placed in the context of the preceding phrase, that whoever has his sustenance measured out to him should spend from what God has given him: wa-man qudira alayhi rizquhu fa-l-yunfiq mimm thu llh, then the gift refers to wealth, and the latter phrase means that God only requires people to give when they have the financial capacity to do so. But what He has given could also mean that each person may act freely in the context of a broader realm of moral-legal liability (taklf), such that the gift is an allusion (kinya) to the general capacity to act, with the result that the verse indicates the absence of liability for those who have no capacity (nafy altaklf bi-ghayr al-maqdr). This latter sense accords better with the prima facie meaning of the text, Anr says, and it is more comprehensive, because spending (infq) when one has the means is already understood from the command to spend what God has given, so to understand the verse in that way would be redundant; one cannot spend what one does not have. But it is not beyond ones capacity to omit or commit certain
150 Bihbahn, Rasil, 353-54 (citing Qurn 17:15; 8:42; 65:7; 9:115; 7:33; 2:173; 16:115); Anr, Rasil, 15168 (same, and adding Qurn 6:145 and 6:119). For the full text, see Appendix. 433

actions from the moral wherewithal that God has given him. Thus, the verse is better understood to mean that people are not accountable for acting beyond their capacity.151 In other words, this verse supports the principle of capacity, he says, exempting those without the capacity to know or follow the law from liability for failing to do so. This interpretation accords with a second often-cited verse that states the matter more clearly: God does not hold anyone accountable except for what is in their capacity: L yukallifu Allhu nafsan ill wusah (Qurn, 2:286).152 Anr cites traditions from the Imms themselves to support his view that this verse and the verse above support a general presumption of innocence: Jafar al-diq was asked, Are people liable for (discovering) Truth (marifa)? He responded, No, it is upon God to clarify the law, for God does not hold anyone accountable except for what is within their capacity: L yukallifu llhu nafsan ill wusah [Qurn, 2:266], and God does not hold anyone accountable except for what he has given them: L yukallifu llhu nafsan ill m th ... [Qurn, 65:7].153 A third verse states the principle even more clearly: We never punish until we send a messenger (to clarify the law): Wa-m kunn muadhdhibna att nabatha raslan (Qurn, 17:15). Anr again explains that sending prophets is another way of expressing clarification of the lawwhether by reason or revelation.154 The verse, along with others, therefore explicitly provides support for the principle of legality

151 Anr, Rasil, 151 (citing Qurn, 65:7); cf. Bihbahn, Risla, 353, 356 (same, with adth exegesis giving a similar meaning).
152 153

Ibid., 152 (citing Qurn, 2:286 (ill wusah)).

Ibid. (citing, inter alia, Qurn, 9:115 (God does not allow a people to stray after having guided them until he clarifies for them what they must be mindful of: Wa-m kna llhu li-yuilla qawman bada idh hadhum att yubayyina lahum m yattaqn.); cf. Bihbahn, Risla, 356 (similar, with adth exegeses).
154

Ibid. (that bath al-rusul is a figurative turn of speech (kinya) for bayn al-taklf naqlan aw aqlan). 434

(nafy al-iqb qabl al-bayn) and the presumption of innocence.155 Further, it supports the notion, important for udd laws in particular, that to follow the law (i.e., to obey God), people must be notified of what the law is so that they know what God has prohibited and thus which acts they must avoid; Gods statements about punishment are to be read as a promise of a clear statement of prohibitions.156 These verses underline the rationalist stance that not only does reason require clear statements of law before liability can attach, but the implicit promise of Gods justice is made explicit as well. Rationalists point to traditions as well, which is especially important to counter traditionist claims inasmuch as that group privileges adths over the Qurn. The most important supporting tradition for rationalists is an oft-quoted adth of lifted liability (adth al-raf). In fact, this adth, more than any other, is the mainstay (umda) of late rationalist juristic arguments in favor of the innocence presumption.157 It states that liability is lifted from members of the community in nine situations, among them, mistake, forgetfulness, coercion, ignorance, and incapacity.158 Commenting on this
155 Ibid., 152-53; Bihbahn, Risla, 353; al-Kim al-Khursn, Kifya, 385 (explaining that this principle invalidates punishment without clearly stated law (as contained in revelation) brought by prophets (nafy al-tadhb qabl itmm al-ujja bi-bath al-rusul).
156

Ibid., 153. This is an expression of the Sh doctrine of Gods justice, whereby He would not punish except after making prohibitions clear, for which purpose He sent prophetsout of his graceto clarify. See, e.g., Khursn, Kifya, 385 (explaining that this principle against punishment without sending prophets to clarify the law (nafy al-tadhb qabl itmm al-ujja bi-bath al-rusul) is a function of divine grace (minna)). Bihbahn, Fawid, 239; cf. Barn, Ala, 253.

157 158

See citations in, e.g., Anr, Rasil, 154; Bihbahn, Risla, 354; Khursn, Kifya, 2:168; Nin, Fawid al-ul, 2:205. For the adth, see Ibn Bbawayh, Faqh, 1:19 (Nine things are lifted from my community: mistake, forgetfulness, what they are forced to do, what they have no knowledge of, what they have no capacity for, what they do by necessity : rufia an ummat tisat ashy: al-khaa wal-nisyn wa-m ukrih alayh wa-m l yalamn wa-m l yuqn wa-m turr ilayh wal-asad wal-tafakkur f l-waswasa f l-khalq m lam yaniq bi-shafa.); cf. Kulayn, Kf, 1:463; al-urr al-mil, Wasil al-Sha, 6:295. For the other adths cited in support of alat al-bara, see Appendix. 435

tradition at length, Anr rejects any arguments limiting its scope. He argues by way of working through a question of criminal law: how to view a violation of the prohibition on wine-drinking by those who fall into one of the categories mentioned in the adth. Traditionists argue that those who do not know should be read alongside the neighboring categories,159 and surmise on that basis that the report only exempts people from liability in cases of factual mistake or ignorance in specific cases. That is, if an individual drank a reddish liquid, unaware that it was actually wine, no liability would attach because of the mistake-of-fact. Whether the mistake was genuine or the ignorance reasonable would be a determination that a judge would make on a case-bycase basis. In other words, the adth applies only to ambiguities of fact, not law.160 Anr regards this as an atomistic approach that is excessively limited and terribly mistaken. To be sure, he agrees with traditionists that the adth covers situations of factual ambiguity and ignorance. For example, it is widely accepted by many jurists, both Sunn and Sh, that ignorance is exculpating where someone lacks notice of what the law is and is unaware that he or she might be violating it.161 In fact, rationalist jurists identify several cases when factual mistake or ignorance can be an excuse. But beyond that, Anr argues that the adth on the whole must be read alongside all the other textual sources, namely myriad Qurnic verses, noted above,
159 Anr, Rasil, 154-63. These principles echo parallel maxims used in American jurisprudence: noscitur a sociis (known from associates), i.e., the meaning of a statutory term must be ascertained by the surrounding words, and ejusdem generis (of the same kind), i.e., that when a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, as the specific words that precede them. See Geoffrey P. Miller Pragmatics and the Maxims of Interpretation, Wisconsin Law Review 1990 (1990): 11791227, 1226; Eskridge et al., Legislation, Appendix B.
160

See, e.g., Astarbd, Fawid. This is an example of factual ambiguity (shubha mawiyya), to which they acknowledge that the innocence presumption and the adth of lifted liability may apply.

161

Barn, Ala, 255-56 (i.e., someone who has encountered no authoritative basis for (or has no notice of) the law: man lam taqum indah al-ujja al l-ukm). 436

specifying that liability exists only when there are clear statements of prohibitions; these verses would have no meaning if the adth of lifted liability applied to facts alone. In other words, both text and reason provide evidence supporting the presumption of innocence as a general principle applying to ambiguities of law in addition to fact.162 Finally, Anr adds that, in a battle of the textual evidence, the permissive reports would win, for they are more reliably authentic than the reports indicating otherwise.163 In sum, rationalists argue strongly that the Qurn and the adth corpus both support the innocence presumption unambiguously. In this, traditionists agreed as far as questions of fact were concerned and insofar as there were ambiguities surrounding legal obligations. But how could rationalists extend this presumption to cover ambiguities relating to law generally, especially if those uncertainties touched on potential prohibitions? How could they assume that there were no lurking prohibitions? Would not the safer path be to avoid those ambiguities entirely?164 To answer these challenges, rationalists had to specifically address the question of the default status of legal rules. They recognized that if it were possible or even likely that acts about which the texts were ambiguous were illegal, the traditionists might have a pointthat to presume innocence would be risky. Accordingly, alongside the presumption of innocencewhich applied to obligationsthey outlined a corollary presumption of permissibility.

162 Anr, Rasil, 154-56. Some later rationalists agreed with the limitation of the innocence presumption to issues of fact (shubha mawiyya); but this is not the majority position. See Barn, Ala, 294.
163 164

Ibid., 154-63; see also Bihbahn, Risla.

Cf. Whitman, Reasonable Doubt, 116-17, 180, 189-202 (on the safer path doctrine in Christian moral theology and its reverberations in medieval English and Continental criminal law). 437

b. In Defense of Presumed/Default Legality Seeing it as part and parcel of the innocence presumption, rationalists made arguments to root the permissibility presumption in the text as well: that everything is permissible until or unless the law clearly states otherwise.165 They point to texts such as the Qurnic announcement that [God] created everything in the earth for you (humans): huwa lladh khalaqa lakum m f l-ari jaman (Qurn, 2:29). Traditionists see this verse merely as a call for people to reflect on Gods existence as seen through His creation.166 Rationalists interpret this and other verses of similar import to mean that everything on earth was placed here for the benefitand therefore free useof human beings. 167 They point to tradition as well, and once again invoke the now-familiar adth, quoted by Ibn Bbawayh, that everything is permissible unless specifically prohibited.168 Rationalists take this at face value to mean that a person need not avoid acts on which the law does not make explicit pronouncements of illegality. Only an explicit prohibition can disturb the broadly stated permissive rule.169 Anr further
165 There is some confusion in the juristic literature between rationalist and traditionalist positions about the innocence presumption because the two camps often conflate it with the permissibility presumption (al-al f l-ashy al-iba), which traditionists definitely reject. See Barn, Ala, 230, 269-71. See ibid., 269 (noting that the verse merely indicates that humans should use reason only to the extent that it allows them to discover Gods existence, after which they should rely on texts for the content of law). s explains that the verse addresses non-Muslims, asking them to reflect on the fact that God created everything on earth for humans out of His grace, so how could they deny His existence? s, Tibyn, 1:124. E.g., al-Miqdd al-Suyr, Kanz al-irfn, 2:300 (noting that the general import is permissive and that the details of prohibitions must be garnered from revelation, as supported by the rest of verse 2:168); abab, Mzn, 1:425 (agreeing with Suyr and further criticizing those who avoid permissible things in attempts at so-called piety whereby they actually follow in the devils footsteps [by prohibiting what God has made permissible]). For further discussion of the permissibility presumption, see Barn, Ala, 275-78 (citing Qurn, 6:145; 2:173; 2:168; 6:119), and Appendix.
168 169 167 166

Cited in Bihbahn, Risla, 354-57; Anr, Rasil, 164-65. Anr, Rasil, 164-65 (that is, of things, not acts: ibat al-ashy att yathbut al-ar). 438

remarks that even Ibn Bbawayh, the early traditionist, relied on this report to permit supplications during prayers in Persian rather than Arabic. According to Anr, Ibn Bbawayh expanded the argument in his Aml to render the presumption of legality a fundamental principle of Sh law without qualification. This, for Anr, is a strong argument against the traditionist insistence on a general obligation of precaution in the face of ambiguity; their traditionist forebear, Ibn Bbawayh, made the case for this presumption more clearly than anyone else.170 Anr elaborates on the implications: in cases of doubt or ambiguity no precautionary measures are due.171 The jurist need not avoid ruling on the matter because the ruling is indicated by the texts: default permissibility. Likewise, the layperson need not avoid acting on the matter because the same ruling is similarly indicated by the texts: default permissibility. In other words, the permissibility presumption places the burden of production (of a legal prohibition) on those maintaining that people should not act freely in areas of doubt or ambiguity. Anrs formulation of the legality presumption sounds remarkably similar to the wording of the udd maxim: in cases of doubt or ambiguity, avoid imposing criminal sanctions. Whereas Anrs formulation is a negative one, against precaution, the udd maxim is an affirmative directive, specifying avoidance. This move, taking rationalists from positive rules affirming legality and negative rules against precaution to the clearly stated maxim of udd avoidance in case of doubt, occurs through coupling presumptions of innocence and legality with the principle of legality itself.

170 Ibid. (citing Ibn Bbawayhs Aml).

171

Anr, Farid al-ul, 164-65. 439

c. In Defense of Reasons Dictates: Revelation and the Principle of Legality Reason too, Anr says, dictates that it would be unjust to punish violations of the law without first offering a clear statement of it. Hence, the principle of legality, the starting point of rationalist jurisprudence concerning prohibitions.172 The simplest example suffices: the master-servant metaphor. If a master punished a servant for failing to carry out a command that the master did not make clear in the first place, any reasonable person would conclude that the master has acted arbitrarily and unjustly.173 Using this metaphor, rationalists insist on the idea of objective divine justice as fairness: God, the master, would not take humans, the servants, to task for failing to carry out commands and prohibitions that He did not clarify. The rational mind concludes, therefore, that He would not punish humans for avoiding prohibitions outlined in texts that lack clarity.174 Rationalist arguments for the principle of legality proceed from both rationalmoral and revelatory-moral bases. Recall that rationalists adopt a principle of a correlation between revelation and reason, that is, whatever reason requires, so does the Law. Unlike Ibn Bbawayhs early formulation, they mean this to be, in some sense, both descriptive and prescriptive. That is, there is a role for reason to discover the actual revelatory rule. This perhaps is why Bihbahn and earlier rationalists began with the rational principle and then used textual bases from the Qurn and Sunna for
172 See Bihbahn, Risla, 349-50 (beginning with this rationalist argument). Anr, Rasil, 168-69 (noting that all reasonable people (uqal) would agree). Not every rationalist jurist takes this stance. Muammad Bqir al-adr, a leading 20th-century jurist, for example, famously rejected it. See Mottahedeh/adr, Lessons, 122 (discussing but rejecting the principle of rational exemption with reference to the same Master-servant (or, alternatively, as here: slave) metaphorthat in the opinion of rational people punishment is wrong without a clear statement [of the pertinent injunction]for matters of divine law).
174 173

Anr, Rasil, 168-69 (ukm al-aql bi-qub al-iqb al shay min dn bayn al-taklf); see also Bihbahn, Fawid, 240-41 (ukm al-aql bi-qub al-taklf wal-mukhadha m lam yakun bayn); idem, Risla, 350 (same). 440

support. Yet there is value to starting with revelation if aiming to deflect charges of atextualism. Accordingly, in his discussion of the principle of legality, Anr flips the order of typical rationalist discussions like those of Bihbahn. His is a more sophisticated pragmatist discourse aimingsuccessfullyat revamping and reviving rationalist discourse to displace the traditionists once and for all. Accordingly, he recognizes the importance of starting with the text, which helps pull the rug out from under the traditionist claims that rationalists stray from the text to devise rules from their own pockets. It also served, in response to traditionist accusations, to construct a more coherent jurisprudence, co-opting their concerns, defusing their grievances, but still building on the rationalist basis of the correlation between revelation and reason. Here, the principle of legality is no less a starting point; if there is perfect correlation, the order should not matter. But because he is arguing from a textualist Islamic legal discourse where revelation does indeed matter, Anr and subsequent rationalists begin with the text.175 Rationalists adduce a few other reason-based arguments in support of the innocence presumption and legality principle. There is the argument about the presumed continuity of a prior state of default innocence or non-liability (istib al 175 See idem, Rasil, 151-70 (presenting seven verses and eight adths before presenting the purely rational arguments in support of the principle of legality and the innocence presumption), see esp. 168-69 (discussing the principle of legality). While Bihbahn began with the principle of legality in his discussions of alat al-bara (see his Risla f alat al-bara, 349, 350), Anr flips the order in his more sophisticated pragmatist discourse. Perhaps Anr recognizes the importance of starting with the text as a means of neutralizing traditionist claims that rationalists stray from the text to devise rules from their own pockets. His more studied approach to traditions in response to traditionist attacks helped him articulate a more coherent jurisprudenceone that absorbs traditionist concerns and still builds the law on rationalist bases, which he and other rationalists maintain correlate with revelation (qidat almulzama).
176

See Barn, Ala, 284 (noting that the verses in support of the principle of legality are confirmation rather than initiation of the principle, which has a rational basis, but that rationalists continued to cite the verses and defend the point in their debates with traditionalists). 441

bara).177 But this was the subject of extensive debate. What exactly was that prior state? For some, it referred to the age of minority or was an analogy to the state of insanity (in which case the intellect was insufficiently mature or sound to incur legal liability); for others it was a general state of non-obligation (istib al-nafy) wherein individuals know that they have no moral-legal obligations to fulfill certain duties, as in the certain knowledge that a person does not owe debt until and unless they have borrowed money, or that the bridegroom need not pay dowry before marriage; the prior state could even refersomewhat circularlyto the rational conclusion that there is a presumption of innocence or non-liability in ones initial state (istib alaql).178 One of the more extensive debates fell around arguments about whether this principle of continuity applied to the legal status of affairs before revelation versus after. Recall that traditionists held that an innocence presumption would make sense only before revelation, when God had not yet clarified the law. The rationalist rejoinder was that the innocence presumption was appropriate for the period both before and after revelation precisely because clarity came through rational deliberation alongside revelation. Revelation provided the textual content of the law, and traditions were crucial for illuminating certain aspects of it, especially matters of ritual worship and the like. But for most issues of law and society the joinder of and correlation between revelation and reason was usually required to achieve true clarity in the laws.

177 Most rationalist jurists accepted the principle, e.g., Bihbahn, Fawid, 242 (i.e., the continuity of the prior state of non-liability (istib adam al-taklf al-sbiq)); al-Muaqqiq al-ill, al-Mutabar, 6 (cited in Barn, Ala, 84-85). But see Anr, Rasil, 169 (acknowledging that the argument about istib can be used by both sides in support of and against the presumption of innocence).
178

Qumm, Qawnn, 266. 442

(Not so for udd laws, where the premium on certainty was highest.) In other words, revelation further clarified and helped guide reason, it did not supplant it.179 2. Ambiguity and Ignorance: Due Diligence and Constraint Rationalists had to respond to the strong traditionist objection that they relied on the innocence presumption because they had failed to locate the actual rule. Traditionists were certain that there was one right answer, that it was clear, and that it would be reflected in the text if at all. The only case in which one would not find the answer would be if it were somehow lostnot because God had not clarified it through the texts of the law; this is why they maintained that failure to find the answer did not mean that it did not exist or that failure to find the rule allowed people to operate in the realm of ambiguity. Indeed, earlier rationalist jurists had made themselves susceptible to this attack because they had indeed made arguments for a rational innocence presumption on the ground that their failure to find the rule indicated that it did not exist. But, as we see, later rationalists argue in favor of the innocence presumption on the basis of textual arguments, not a lack of guiding texts;180 that is, for them, it was not that the rule did not exist, but that the text itself had indicated that certain principles applied in cases of textual ambiguity, and had delegated to jurists the task of ascertaining which principle. 181 The innocence presumption was the first of these principles to which the text directed jurists.
179 This recalls the debate among jurists and theologians about the status of law before revelation, which is beyond the scope of this discussion. For a study of these debates, focusing on the three principal Sunn positions (that acts before revelation were permitted, proscribed, or had no assessment), see Reinhart, Before Revelation, 21-23, 29-76.
180 181

Barn, Ala, 268 (ujjiyyat al-bara al-shariyya).

Ibid. Cf. Bihbahn, Fawid, 253 (affirming that the rule exists based on the doctrine that the Prophet delivered Gods complete message, but that instead of being clearly stated in the texts, it may require rational analysis to ascertain). 443

Importantly, as if in response to the Scalian critiques of Astarbd and other traditionists, rationalists are keen to insist that the innocence presumption is not a broad-based and unconstrained principle that permits jurists to merely follow their whims. The presumption only arises when there is genuine uncertainty as to what the texts require;182 otherwise clear textual statements will always control. It comes through a defined interpretive process. As Anr puts it, before jurists can conclude that the innocence presumption applies to some legal uncertainty, they must exercise due diligence in ascertaining the legal rule through an exhaustive investigation of the texts; and even then, the presumption does not apply to certain cases.183 Again, he begins with the text to support this point, pointing to several Qurnic verses and adths requiring people to seek knowledge and to inquire in cases of ignorance.184 Accordingly, negligent ignorance is not an excuse; the innocence presumption will not apply to a jurist who fails to investigate or a layperson who does not ask a jurist or someone knowledgeable about the law when they have reason to suspect that some ruling beyond the default state of permissibility might apply.185 Even in mundane matters, people typically have constructive knowledge of social norms (i.e., they know
182 Anr, Rasil, 150-51 (defining ambiguity as uncertainty as to whether the rule is one of prohibition or obligation).
183 Ibid., 312 (noting that this discussion applies to uncertainty about the law (shubha ukmiyya), as there is no need to search the legal texts for factual uncertainties (shubha mawiyya), becauseby definition the law is clear and there is uncertainty about whether it applies to a particular circumstance; traditionists agree that the innocence presumption can apply to the realm of factual uncertainty if anywhere). 184 185

Ibid. (citing verses and traditions).

Ibid. (adam madhriyyat al-jhil al-muqair); cf. Dmd, Qavid, 4:57 (contrasting excusable ignorance, to which the innocence presumption will applyas in the case of someone who duly tries to ascertain the law but cannot because they live far away from the centers of knowledge (jahl-i qur)with inexcusable ignorance, to which the innocence presumption will not applyas when a layperson is able to ascertain the law by simply asking a jurist, but fails to do so because he or she fears that the act might be prohibited; this is called ignorance by way of negligence (jahl-i taqr)). 444

generally that certain behaviors are acceptable and have the ability to find out what they are; social cues help signal when certain behaviors are expected or doubtful). No rational person would conclude that wildly diverging from those norms is excusable based on mere claims of ignorance that flow from a disregard of what the norms are or whether their actions are acceptable. Likewise in the law, all legal agents have at least a general awareness (ul al-ilm al-ijml) that obligations and prohibitions exist and that they should ascertain what they are in any case where they have cause to doubt the default status of permissibility.186 Accordingly, where the law is clearly stated and clearly discoverable, violations of law suggest that the agent is acting out of willful ignorance, and no rational mind would conclude that punishment is unjust, claims of ignorance notwithstanding.187 How much investigation is enough? Anr says that the standard changes over time, but that at the very least, it means investigating so thoroughly that one concludes (lit.: despairs) that they will not find a relevant text (to decisively guide the matter) from the available sources.188 Specifically, the search includes looking at the texts of the Qurn, the four canonical adth collections, as well as other relied-upon adth collections that are easy to access for the average scholars of the age.189 If, after searching through all of these sources, there is no clear textual guidance, the expert jurist then has strong reason (ann) to believe that there is no clear statement in the

186 Anr, Rasil, 313.

187 188

Ibid., 312-13.

Ibid., 327 (add al-fa huwal-yas an wijdn al-dall fm bi-aydn min al-adilla, wa-takhtalif dhlik bikhtilf al-ar). Ibid. (here, it is this age: hdh l-ar). 445

189

texts, and that is enough to move into the realm of the innocence presumption.190 Here, Anr admits that reason to believe is not certaintythe standard typically required for inferring a legal obligation. Both for pragmatic reasons and in light of the directives of other texts, he holds that the jurist need not engage in further research beyond that point: doing so would impose an undue burden (araj) (which the texts forbid)rendering the interpretive process excessively cumbersome and preventing the scholar from investigating other areas of law (sir al-taklf).191 But he also points out that the jurists strong belief is not the basis for the rule. Rather, the basis comes from the text itself, which is certain, and which directs jurists to apply the innocence presumption in the face of ambiguities precisely to resolve such instances of ambiguity.192 In short, the innocence presumption is applicable only after exhausting the interpretive process, to the point that the search has revealed that there is no clear statement of law and thus no moral-legal liability.193 The texts themselves have defined the process. It is as if the texts have delegated to jurists the task of saying what the law is, based on a rational analysis informed by a hierarchy of four text-based interpretive presumptions (ul amaliyya) designed to resolve ambiguitythe innocence presumption being the first fundamental principle.

190 Ibid.
191 192 193

Ibid. See ibid., 151-68 (identifying textual bases).

Bihbahn, Fawid, 253 (bad badhl al-juhd wa-stifrgh wusih f l-adilla, wa-tal al-ukm, fa-in lam yajid dall al l-taklf tamassaka bih [al al-bara]). 446

3. Ambiguity and Resolution: The One Right Answer as Process Roy Mottahedeh has provided the most succinct outline of the rationalist interpretive process in his translation of Muammad Bqir al-adrs influential and widely-read modern work on jurisprudence.194 This section draws on his treatment to briefly outline the interpretive process and provide an overview of the interpretive presumptions; here the innocence presumption finds its place front and center. Rationalist jurisprudence comprises three main areas of inquiry: textualist bases, interpretive presumptions, and conflicts of arguments. The textualist bases are by now familiar. The texts of the Qurn and traditions provide the basic building blocks for the law. These are augmented by other contextual indicators that help provide certainty, where the import of the texts alone is unclear or they are of dubious authenticitysuch as consensus, prevalence of a particular legal opinion, or continuous community practice supporting accounts in traditions (which may otherwise fall short of the technical standards of reliability when related by a single source). Jurists further follow certain shared elements of jurisprudence195 and common linguistic canons of construction.196 Interpretive presumptions, that is, principles that lead to knowledge of
194 See adr/Mottahedeh, Lessons, 137. Examples include the following: that the specific takes precedence over or qualifies the general import of a text, that the existence of a mandatory ruling depends on certain necessary preliminaries, that injunctive legal rulings are of five basic types: mandatory, advisory, permissible, discouraged, and prohibited; or that declaratory rulings (concerning the effects of legal instruments designed to change or create a certain status, such as marriage contracts) are of three types: valid, invalid, and defective. For discussions, see, e.g., adr/Mottahedeh, Lessons, 55-56. For lists, see, e.g., Lajna, Qawid, 1:213-64 (qawid al-mm wal-kh wal-mulaq wal-muqayyad), 265-303 (qawid al-qa wa-wasil al-irz al-wijdn), 311-50 (qawid al-ann). Examples include the following: that words are to be taken according to their conventional meanings unless some textual clue indicates otherwise that commands are to be understood to mean mandatoriness unless some other clue indicates that they are advisory. For discussions, see adr/Mottahedeh, Lessons, 72-73, 82-88. For lists, see, e.g., Lajna, Qawid, 1:15-42 (linguistic canons (qawid al-alf)), 423. 447
196 195

the appropriate duty in practice, apply only when no substantiating [textual] argument can be found and the proper ruling remains in doubt.197 Finally, at times different methods of deriving the law might point to different conclusions, as in conflicts between texts or interpretive presumptions. In such cases, Islamic jurisprudence further lays out ways to resolve these conflicts between interpretive principles. This framework, and the elaboration of the interpretive presumptions in particular, were Anrs major contribution to jurisprudence. Through them, he sought to deal with instances of ambiguity and doubt. In brief, they are as follows:198 a. The Innocence Presumption (alat al-bara). This principle has been discussed at length here. In essence, it applies as an interpretive rule of thumb to resolve uncertainties about both obligation and prohibition and about questions of law and fact.199 b. The Precaution Principle (qidat al-itiy or ishtighl al-dhimma). This principle refers to situations where a legal agent is aware that there is certainly some legal duty to either peform or avoid a certain act, but is confused as to the correct duty between two or more possibilities. In such cases, the safer way is for the agent to do perform or to avoid both or all acts in question to avoid negligently falling short of performing the potential duty. For example, if he knows that he has a duty not to drink wine, and is presented with two glassesone of which he knows to be wine but is unsure which onehe must avoid both. Likewise, if the agent believes that there may be a duty to peform the
197 adr/Mottahedeh, Lessons, 36, 165.
198 As a theoretical proposition, adr initially accords primacy to the precaution principle over the innocence presumption, calling the former the fundamental principle (al-qida al-amaliyya al-assiyya) on the notion that a servant owes the master complete obedience. With any guiding texts, logic might lead the servant to conclude that precaution is warranted because avoiding all possible prohibitions and following all likely commands would certainly bring her acts within the scope of the masters wishes. Ibid., 120-23. Yet the texts and the principle of legality (qub al-iqb bi-l bayn) within them suggest otherwise, namely, that the innocence presumption is primary rather than secondary (al-qida al-amaliyya al-thnawiyya). Ibid., 123-25. The typical order (and the order with which adr himself agrees in the end) has been followed here, placing the innocence presumption first. 199

Ibid., 123-25. 448

congregational Friday prayers or that the duty is to peform the ordinary midday prayer on Fridays, but there is uncertainty about which is a firm duty, this principle requires her to perform both. This is the traditionists sole guiding principle to dealing with ambiguity. In this case, one should choose the safer way, usually by avoiding both in the case of prohibitions or performing both in the case of obligations.200 c. The Either-Or Principle: Duty to Perform one of two Obligations (Takhyr). This principle refers to situations where a legal agent is aware of a duty to perform one of two unknown obligations, but is unsure which of the two alternatives is due. That is, he or she is presented with two rulings that lead to polar opposites, as in one commanding to perform and action and another prohibiting it. For example, a man has firm reason to believe that either the Friday prayer is obligatory and the midday prayer is prohibited on Friday, or vice versa. In such cases, the agent can neither perform both the Friday prayer and the midday prayer nor abandon both without sinning. This principle advises him to perform one of them, rather than to perform or abandon both. 201 d. The Presumption of Continuity (qidat al-istib). This is a principle stipulating that the agent should continue to rely on his or her knowledge about the legal status of any practice about which he or she was formerly certain but then subsequently has come to doubt that [the previously applicable ruling] persists.202 For example, she knows that water in large amounts is intrinsically pure for ritual purposes. But then she doubts whether contact with an impure substance that, for example, falls into a small pool of water203 is sufficient to render the entire body of water impure. This principle directs her to assume that the small body of water remains pure. This example involves factual doubt. As for legal doubt, she may doubt, for instance, whether congregational Friday prayerswhich she knew were obligatory during the age of the Imams Presencecontinue to be obligatory in his Absence; does the caliph or modern state stand in the place of the Imm? This principle directs here
200 Ibid., 120-23; see also Khursn, Kifya, 406-35.
201

adr/Mottahedeh calls this the principle of the inculpatoriness of non-specific knowledge (qidat munajjiziyyat al-ilm al-ijml). Ibid., 119-32, 165-69. adr/Mottahedeh, Lessons, 133.

202 203

That is, at or less than the requisite amount for which the purity of the water is said not to be open to question (qullatn), said to be 500 Baghdd pounds (ratl) according to 8th/14th century Shfi jurist Ibn alNaqb, which is estimated to fill the shape of a space the height of two to three feet by a square meter. 449

to assume that the obligation to pray congregational Friday prayers continues. It is based on a broadly stated tradition that certainty [of the existing situation] is not superseded by doubt [regarding whether the circumstances have changed]. That is, she should only change her understanding about purity, ritual law obligations, or any other factual or legal issue based on certain knowledge of a material change that changes ones fundamental obligations before the law.204 For rationalist jurists, following this interpretive process yields a practical position vis--vis th[e] unascertainable ruling as a substitute for the discovery of the ruling itself.205 The important point to note is that rationalists are not disagreeing with traditionists that there is one right answer; most say that there is.206 They are disagreeing on whether one can reach it, and how. For traditionists, for whom the text is the start- and end-point, the right answer is contained in the clear text and requires complete avoidance of ambiguity. For rationalists, for whom text is the starting point but not the ending point in recognition that text is often ambiguous, the right answer is reached through the interpretive process and through resolution of ambiguity through the interpretive presumptions laid out in the text themselves. This same analysis guides the application of the udd maxim and other maxims that have both interpretive and substantive aspects.
204 adr/Mottahedeh, Lessons, 132-36, esp. 133 (citing the well-known adth (here: of Zurra b. Ayan alKf), which is counted as one of the universal legal maxims of both Sunn and Sh law: Certainty cannot be destroyed by doubt.).
205 206

Ibid., 119.

See Khursn, Kifya (1990), 468-69. He notes the consensus-Sh position, called takhtaa, that God has a ruling for every matter, which jurists sometimes ascertain through the interpretive process but sometimes miss. This is the majority position in Sunnism as well, as against a minority Sunn position called tawb, which holds that God does not have a single right answer for every matterbut that the correct ruling shifts according to the conclusion at which jurists arrive through their interpretive processes. This is principally a theological question which has been brought into and underlies legal discussions about obligation and juristic interpretive authority. For a brief analysis presenting arguments on both sides and evaluating the relationship between those positions and questions of interpretive authority, see Birgit Krawietz, Hierarchie der Rechtsquellen im tradierten sunnitischen Islam (Berlin: Duncker and Humblot, 2002), 337-53. 450

III. Conclusion: The udd Maxim and the Innocence Presumption

In their search for clarity and certainty in the law, rationalists and traditionalists alike had to admit that ambiguity persisted and had to find ways of dealing with it. The realm of ambiguity was from the beginning the central battleground for the debates about reason and the law, because that realm was the least grounded in text from revelation. The battle tactics can be summed up as follows: Rationalists sought to resolve ambiguity, while traditionalists preferred to preempt it. Both drew on textual sources for support and centered on arguments for and against the presumption of innocence, which provides the backdrop to the realm of substantive legal maxims. Their debates are worth exploring because they show vividly the jurisprudence of each camp. Specifically, the debates elucidate the concept of law and its purposes amongst the two camps in a way that has implications for the scope of the udd maxim in particular, and the place of legal maxims in Sh law writ large. Accordingly, this discussion further clarifies the nature of the duel between principles favoring udd-aversion versus those favoring udd-imposition in the period before the rationalist triumph;207 it reveals the main impact of echoes of that duel on udd jurisprudence and on the validity of legal maxims as rational presumptions based on textual principles writ large. This chapter did not seek to exhaust these themes, which span matters of theology, philosophy, and law. The aim was much more modest: to explore key elements of juristic debates as they relate to issues of ambiguity and interpretive
207 Al-Murta al-Anr is credited with advancing the law to provide a decisive victory of rationalism over traditionalism in Sh law. Modarressi, Introduction, 57-58; J.J.G. Jansen and Andrew Newman, art. Uliyya, EI2, 10:935; Abdul-Hadi Hairi, art. Anr, Shaykh Murta, EI3, 12:75 and sources cited therein. Subsequent Sh jurists have subscribed to rationalist views, except for small pockets in Gulf countries Bahrain and Saudi Arabia (i.e., Qaf and As) and in the Indian subcontinent. 451

authority that feature so prominently in questions of legal maxims in general and the udd maxim in particular. This examination, it is hoped, offers a practical example of the effect that theological worldviews have on the very structure of the law and modes of legal interpretation. 208

208 For standard histories and doctrines of Islamic theology and philosophy, see, e.g., Oliver Leaman, Introduction to Classical Islamic Philosophy, 2nd ed. (Cambridge: Cambridge University Press, 2002); Nagel, Geschichte der islamischen Theologie; van Ess, Theologie und Gesellschaft. 452

CONCLUSION We began by mentioning Karl Llewellyns famous portrayal of dueling maxims. For decades, Llewellyns critique of maxims in the American context crippled the once robust intellectual discourse on legal maxims.1 Perhaps they are analogous to the circles of opprobrium that maxims once faced amongst Sunn textualists. And one might consider any losses small casualties compared to the centuries-long disability that Astarbd and other traditionists inflicted on discussions and applications of rationalist legal maxims in Sh law as his interpretive philosophy marched forward triumphantly for a time. In American law, Llewellyns attack never fully expunged maxims from the courtroom or the classroom,2 nor did the textualist disdain for substantive maxims. Likewise, in Islamic law, neither did the textualist attack. The persistence of legal maxims in circles of legal education and interpretation has forced scholars in the American legal academy to turn their attention to maxims once more in attempts to explain why they persist (and, for opponents, to redouble their efforts to persuade courts to discard them once and for all).3 In the same way, here is an attempt

1 See, e.g., Jonathan R. Macey and Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, Vanderbilt Law Review 45 (1992), 647 (A regrettable side-effect of Karl Llewellyns interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century.).
2

See, e.g., Eskridge et al. (2001), Legislation, 97-108, Appendix B (collecting the canons used or employed by the Rehnquist Court from 1986 through 1993); James J. Brudney and Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, Vanderbilt Law Review 58 (2005): 1-120, 106-07 (cataloguing the use of some maxims subsequently in the same Court).

Since the 1980s, it has picked itself up to become a central part of the debates of statutory and constitutional interpretation. Reflecting that trend, the same journal that published Llewellyns chafing critique in 1950the Vanderbilt Law Reviewpublished a symposium issue in 1992 highlighting the renewed interest in legal maxims, volume 45 of the Vanderbilt Law Review (1992), and there have been other symposia since (e.g., Cardozo Law Review 16 (1995)). For a representative sample of the 1980s scholarship, see Macey and Miller, Canons and Judicial Preferences, 648 note 4 (listing citations). For a 453

to address similar questions facing Islamic law in a comparative context in light of the recent explosion of Islamic legal maxims literature and its longtime historical salience. We saw in Chapter 1 that maxims were in fact universal in the early period. The udd maxim, amongst others, was used during the earliest period of Islamic law: likely, it hailed from the first few decades such that by the end of the first century, it was already axiomatic. It played a prominent role in 2nd/8th and 3rd/9th century understandings of prior practice and had become so central in the 4th/10th and 5th/11th centuries that it was deemed of indubitable prophetic provenance and authoritative weight. The transformation of maxims into adth during this period accompanied the canonization of adth as a source of law; it represented a shift in legal authority as jurists came to subscribe to a type of tradition-based textualism that accommodated legal maxims so long as they were based on scripture. There was no question in the minds of these jurists that the udd maximbecause of its centrality and antiquity must have been a adth. It was of benefit to jurists as an institutional body. As we saw in Chapter 2, jurists used the maxim to temper imperatives making for rigidity and excessive application of udd laws out of a sense of judicial subservience; it also helped ameliorate their moral anxieties about imposing the death penalty and other harsh sanctions when there was some measure of doubt. As a response to political excesses in criminalization and prosecution, the maxim and elaboration of a jurisprudence of doubt served as a means of extending the sphere of juristic authority only to limit and systematize the application of udd laws.

review of canons scholarship since, see William N. Eskridge et al., Legislation: Statutes and the Creation of Public Policy, 4th ed. (St. Paul, MN: West, 2006). 454

I elaborated the concept of doubt in Chapters 3 and 4, which describe the expansion of the maxim to cover interpretive, substantive, and evidentiary doubts in the formative and professional periods of Islamic law. In a real sense, the maxim was at the center of key issues of law and society involving contests of legal authority in political and juridical spheres. This expansive role of the udd maxim and the benefits that proponents derived from it were not unopposed. Strict textualists like Ibn azm disputed its canonical status, and those like Ibn Taymiyya questioned it, his colleagues either opposing the maxim or marginalizing it in their works. Chapters 5 and 6 examined opponents of the maxims and explored the reasons for their opposition. As it turns out, opposition to the maxim stemmed largely from theological views that translated into textualist commitments to the law as a way of preempting doubt rather than resolving it. These jurists typically were after a single right answer that they perceived as being located in the text of the law itself; any use of tools like legal maxims that went beyond the text was but human speculation that they considered to have no place in the law and to be of no benefit to juristic exponents of it. Throughout this study, we have seen that maxims themselves are not necessarily in a duel. The udd maxim can be valid at one point for some jurists, invalid at another for other jurists. But it is not that the maxims are going head-tohead themselvesas if enlivened, armed, and viciously on the attack against one another. Instead, jurists breathe life into maxims in response to ongoing societal and political demands, as a means of ameliorating moral anxieties, and through executing their own interpretive philosophies arising out of their theological worldviews about

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the nature and scope of interpretive authority. It is the jurists varied underlying understandings of law implicitly based on these three factors that create fundamental differences in their methods of legal interpretation and use of maxims. In broad terms,4 rationalist jurists acknowledge and welcome the aid of reason in resolving legal problems where the text is silent or otherwise ambiguous with respect to the problem at hand. They seek to resolve it through employing rational principles drawn from revelatory precepts, by which they aim to constrain judicial discretion while accommodating an active role for jurists in clarifying the law. Traditionists, by contrast, aim to remain true to the shared ideals of certainty in the law and absolute deference to the sole divine Lawgiver by relying only on the text. Their approach aims to bar the creep of reason and thereby reign in arbitrary judicial discretion by requiring jurists to hew closely to the text, guided only by certain limited textual-interpretive canons of construction. Both camps exhibit heightened concern for certainty and aim to constrain discretion in the area of criminal law, but each manifests those concerns differently according to overarching philosophies of law and interpretation. When rationalist jurists adopt theological presumptions of innocence and permissibility (even if de facto, as in the Sunn context), they consider acts legal unless otherwise specified. This is a pragmatist conception of the principle of legality and, underlying it, the udd maxim becomes a general precept that requires udd avoidance in cases of ambiguityboth on questions of law and questions of fact. When traditionists adopt theological
4 Rationalists and traditionalists are presented here as ideal types. In fact, they fall along a continuum, with individual jurists and groups of jurists subscribing to similar principles falling somewhere along the continuum from reason to tradition, with some traditionalists taking rationalist stances on certain issues and vice-versa. As such, these terms should be understood as describing juristic inclinations in broad strokes, rather than as depicting rigid and unvaried camps. 456

presumptions of potential culpability, acts and legal judgments are to be avoided unless otherwise specified. They adopt a textualist principle of legality, wherein all that is legal must be spelled out in the text. The udd maxim becomes a statement limited to matters of factual ambiguity only. Duel, there is. But it is not one between maxims themselves, as Ibn azm, and Sh and other traditionist jurists presumed. Nor is it one in which jurists simply used oppositional maxims to adjudicate in outcome-determinative ways, as the likes of Llewellyn argued. Instead, the field of Islamic legal interpretation can be a battleground of complex theoretical and practical concerns surrounding the emergence and application of legal maxims. As such, the duel is between different orientations amongst individual jurists and groups of them who subscribe to differing interpretive philosophies of law. Divergences in those philosophies stem from a host of socio-political considerations, theological presuppositions, and moral anxieties about the nature of law and interpretive authority. In the face of doubt, jurists looked to legal maxims for benefit.

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APPENDIX Bibliographical Guide to Legal Maxims Literature

This list is meant to help the reader situate the udd maxim in the panoply of Islamic law, by showing the scope and extent of available legal maxims literature wherein the udd maxim features more often than not. It is also meant to facilitate future research in legal maxims and the history of the field. Though there were expositions of universal maxims and collections of presumptions of law as early as the 4th/10th and 5th/11th centuries, collections of legal maxims proper did not start to appear in concentrated numbers until a couple of centuries later. Mliks and Shfis in the Mamlk age of legal pluralism likely found a need to detail their school-specific principles that displayed both substantive and procedural commitments and that identified the interpretive principles observing methodological fidelity to each school. Thus, the Mlik jurist Shihb al-Dn al-Qarf (d. 684/1285) penned what is now hailed as the most relied-upon work of legal maxims in his school, and his rival Ibn Abd al-Salm (d. 660/1262) did the same in the Shfi context. To be sure, there were works anticipating the maxims treatises of this time, but that literature did not develop a particular form as characterized the maxims literature of the Mamlk period and after. As is typical in Islamic law, textual traditionsonce firmly established by luminaries in the fielddiffused widely and relatively quickly throughout the schools with little regard for geographical boundaries. Mliks in Andalusia and elsewhere took on the task of composing maxims literature for the next three centuries, as did Shfis in central Arab lands. anbals
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and the Imm Sha picked up the field the 8th/14th century, also in Mamlk Egypt and Syria, and the doctrine spread from there for the next two centuries as well. In sum, all of these schools had traditions of collecting and elaborating legal maxims, traditions that took off in earnest beginning in the Mamlk period. This trend lasted until the 10th/16th century, after which there was a long period (the 12th/18th and 13th/19th centuries) during which the literature continued to be produced but not nearly with as much gusto, until modern times. The remaining Sunn school that is somewhat exceptional when it comes to maxims literature is the anaf school. They too began penning works of legal maxims in the 8th/14th century Mamlk era, e.g., Sharaf al-Dn al-anaf (d. 799/1390), but the anaf tradition of maxims did not take off in significant measure until the 10th/16th century, right around the time that the legal maxims collections in other schools began to taper off in tandem with the fall of the Mamlks. The Ottomans rose in the early 10th/16th century, and so did legal maxims in the anaf school. The bulk of developments in legal maxims literature featured for the next centuries in that school, which had come to dominate most of the Islamic world. The Ottoman anaf luminary Ibn Nujaym (d. 970/1563) penned one of the most enduring works of maxims in the anaf school and elsewhere. Ibn bidn (d. 1252/1836) authored a major commentary on that work, which also exercised wide influence on law and legal maxims. And in 1869, a committee of Ottoman jurists composed a Commercial Code (the Mecelle) that codified rules and principles of that area of law. The work was preceded by ninety-nine legal maxims that drew on Ibn Nujaym and Ibn bidns formulations; they were meant to guide judicial applications of the law for jurists not trained in the classical Islamic

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tradition in a changing system that still sought to adhere to it. Dozens of commentaries were written and elements of the commercial code were in place through much of the Arab Islamic world until the mid-20th century replacement by legal codeswhich themselves absorbed maxims. This was the last great exposition of legal maxims in the anaf school, the commentaries and maxims literature lasting through the 14th/19th century when we see another major institutional and geo-political shift in the Islamic world. At that point, the maxims literature rises again. In the 13th/19th and 14th/20th centuries, carrying into recent years, there has been a veritable explosion of maxims literature in the literature of the major schools Mlik, Shfi, anbal, anaf, and Shas well as in scholarly works offering comparative treatments of maxims across the various schools of Islamic law. The udd maxim remains central in all of these collections, reflecting its earlier centrality to the development of and changes in Islamic criminal law and the moral-societal values behind it. The story remains to be told as to how and why the legal maxims arose when they did and what particular function they played in diverse Islamic societies. Here, I provide a window onto the form and function of one such maxim to show how these issues played out. I provide a list of major works of legal maxims in the various schools to give a sense of the trajectory of the literature and to provide tools for future research. This brief discussion is preliminary when it comes to explaining the history and socio-political contexts surrounding the rise, fall, resurgence of legal maxims as a genre. The fuller story is yet to be told. It is one that I plan to turn to in future work.

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Overview The following is an annotated listing of major works on legal maxims from the advent of the literature as a genre in the 7th/13th through 10th/16th centuries up to the present. Recently, the 20th century and the first decade in the 21st have seen this genre reemerge as a major field of the study in the Muslim world (primarily in the central Arab lands, North Africa, Iran, and Turkey, but also South and Southeast Asia). There are few indepth studies on the literature (and none in English) that situate it in the broader context of Islamic law in conceptual or historical terms. Similarly, there are no extensive guides that identify and provide resources on the genre particular to Islams legal schools from either the medieval period (identifying the core works and surveying the field in each major school) or from modern times. The exception is the very useful 2002 article by Wolfhart Heinrichs, called Qawid as a Genre of Legal Literature, which presents a preliminary list. This bibliographical survey too is preliminaryto be followed by a fuller list in a later publiationin efforts to build on that initial list and further address the greater lack. Primary Sources Listings by School .................................................................................... 453 anafs ................................................................................................................................. 463 Core Works.................................................................................................................... 463 Extended List ................................................................................................................ 463 Mliks .................................................................................................................................. 466 Core Works.................................................................................................................... 466 Extended List ............................................................................................................... 466 Modern Works .............................................................................................................. 469 Shfis .................................................................................................................................. 470 Core Works.................................................................................................................... 470 Extended List ................................................................................................................ 470 anbals ............................................................................................................................... 474 Core Works.................................................................................................................... 474 Extended List ................................................................................................................ 474 Modern Works .............................................................................................................. 475 Shs (Imms)..................................................................................................................... 475 Core Works.................................................................................................................... 475 Extended List ............................................................................................................... 475

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Secondary Sources Listings by Topic .................................................................................. 480 Core Works (English) ........................................................................................................ 480 General Overviews (Arabic, Persian, etc.)....................................................................... 480 Important Mecelle Studies ................................................................................................ 482

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Primary Sources Listings by School anafs Core Works Ibn Nujaym (d. 970/1563), K. al-ashbh wal-nair Khdim (d. 1176/1762), Majmi al-aqiq Ibn bidn (d. 1252/1836), Nuzhat al-nawir. A commentary on Ibn Nujayms Ashbh. Mecelle (Ar. Majalla) = Majallat al-akm al-adliyya (composed 1869). The first 99 articles are maxims said to be drawn from Ibn Nujayms Ashbh. Extended List Ab hir al-Dabbs (d. 4th/10th century). Suy designates him as the first to reduce the anaf school to 17 principles, from which the Shfi jurist al-Haraw (d. 518/1124) took 7. But this story is apocryphal or tropical, as the two are not contemporaries, and we know of no written works by Dabbs. Karkh (d. 340/952) = Ab l-asan Ubayd Allah b. al-usayn al-Karkh, al-Ul, published alongside Dabs, Tass al-naar (see below). Includes 39 awbi or qawid a mix of substantive maxims (qawid fiqhiyya) and interpretive canons (qawid uliyya). They are called ul, meaning presumptions based on doctrines and methodologies particular to anaf law. Nasaf (d. 537/1142), Shar al-Ul (see below). A list of cases and practical applications (masil) for each maxim mentioned by Karkh. Ab Layth al-Samarqand (d. 373/983), Tass al-nair in Tass al-naar by Dabs. Said to include 74 maxims. It is to this work that Dabs is said to add 12 qawid for his total of 86; the work survives by incorporation in Dabss Tass al-naar. Dabs (d. 430/1039), Tass al-naar, together with al-Ul by Karkh. Mentions 8 areas of differences on qawid amongst jurists, then adds 12 ul or awbi (plus interpretive canons (qawid uliyya)) to Samarqands list of 74 maxims for a total of 86. Nasaf (d. 537/1142), Shar al-Ul [by Karkh (above)]. Clarifies what qawid are, along with examples of each and differences between them, both amongst anafs and between anafs and Shfi detractors. Sharaf al-Dn al-anaf = Al b. Uthmn al-Ghazz al-Dimashq (d. 799/1397), al-Qawid f l-fur. An early qawid work for the anaf period of increased activity in the field, which begins with Ibn Nujaym. Ibn Nujaym (d. 970/1563), al-Ashbh wal-nair. Includes legal maxims (qawid fiqhiyya) and other matters of law and history. There is a close resemblance between this book and Suys Ashbh, as Ibn Nujaym drew on Suys book, a point that he explicitly makes in several places in the work in addition to quoting a number of
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pages from Subk; this book is relied upon by anaf jurists, many of whom comment on it (talq) or compose rearrangements of it (tartb). For a list of over a dozen commentaries, see jj Khalfa, Kashf al-unn (listing commentaries). Along with Suys Ashbh, this was the most popular qawid book of his time.. Important Commentaries Sharaf al-Dn al-Ghazz (d. 1005/1596), Tanwr al-bair al l-Ashbh wal-nair. Ms. amaw (d. 1098/1687) =Amad b. Muammad, Ghamz uyn al-bair shar alAshbh wal-nair. Ibn Br (d. 1099/1688), Umdat dhaw al-bair li-all muhimmt al-Ashbh walnair. Ms. Ab l-Sud al-usayn (d. 1172/1758-59), Umdat al-nr al l-Ashbh walnair. Ms. Tj (d. 1224/1809) = Muammad Hibat Allh b. Muammad b. Yay, al-Taqq al-bhir f shar al-Ashbh wal-nair. Ms. Ibn bidn (d. 1252/1836 or later), Nuzhat al-nawir al l-Ashbh wal-nair. Timurtsh (d. 1004/1595). al-Wul il qawid al-ul. Ms. amaw (d. 1098/1687) =Amad b. Muammad. al-Uqd al-isn f qawid madhhab Numn, in verse with commentary by the author entitled Farid al-durr walmarjn shar al-Uqd al-isn. _____, Ghamz uyn al-bair shar al-Ashbh wal-nair (see above). Ibn Br (d. 1099/1688), Umdat dhaw al-bair li-all muhimmt al-Ashbh wal-nair. Ms. (see above). Ab l-Sud al-usayn (d. 1172/1758-9), Umdat al-nir al l-Ashbh wal-nair. Ms. (see above). Ab Sad al-Khdim (d. 1176/1762) = Muammad b. Muammad b. Muaf al-Khdim, Majmi al-aqiq wal-qawid wa-jawmi al-rawiq wal-fawid. Legal theory (ul) work, except that it has an index of 154 qawid, alphabetically arranged. Commentaries to the qawid appendix Muaf b. Muammad al-Kzil ir al-Bldn. Published in 1246 AH. Sulaymn al-Qarq Aghj. Published in 1299 AH. _____, Manfi al-daqiq f shar Majmi al-aqiq. Authors commentary of the previous work. Commentaries Sulaymn al-Qirqaghaj, Shar al-Khtima (see below). Muaf Hshim = afd Qjah, al-qawid (Istanbul: Dr al-iba al-mira, 1295).
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Tj (d. 1224/1809) = Muammad Hibat Allh b. Muammad b. Yay, al-Taqq al-bhir f shar al-Ashbh wal-nair. Ms. (listed above). Muaf al-Gzelisr (fl. 1246/1830), Manfi al-daqiq shar Majmi al-aqiq. Commentary on Khdim, Majmi (listed above). Ibn bidn (d. 1252/1836), al-Ashbh wal-nair. _____, Nuzhat al-nawir al l-Ashbh wal-nair. Commentary on Ibn Nujayms Ashbh (see above). NB: Brockelmann, GAL, credits Khayr al-Dn al-Raml (d. 1081/1670) with a commentary by this title. Ibrhm b. Muammad al-Qayar al-anaf = Kz Buykzdeh (d. 1252/1836), Majmat al-qawid. Abd al-Sattr b. Abd Allh al-Quraym al-Qusann (d. 1304/1866), Tashr al-qawid al-kulliyya. Mamd Afandi amza, muft of Damascus (d. 1305, al-Fawid al-bahiyya f l-qawid alfiqhiyya. Organized according to fiqh chapters, but not all are legal maxims (qawid or awbi); the work includes a number of fiqh rulings (fur), placed under the name fida. Mecelle, al-Majalla = Majallat al-akm al-adliyya (composed 1869). Authored by the Lajna min ulam al-dawla al-Uthmniyya; preceded with 99 qawid, said to mostly be taken from Ibn Nujaym and his methodology, as noted in the introduction to the Majalla; many of the qawid align closely with the qawid listed in Ab Sad alKhdim in Majmi al-aqiq. Important Commentaries Al aydar, Shar Majallat al-akm or Durar al-ukkm. Amad al-Zarq (1403/1983), Shar al-qawid al-fiqhiyya. Muammad Khlid al-Atts (Muft of im). Commentary completed by his son hir al-Atts and published in 6 vols. in 1931, which in turn has its own published and unpublished commentaries. Ibn amza al-usayn (d. 1305/1887-8) = Mamd b. Muammad b. Nasb b. usayn, alFarid al-bahiyya f l-qawid wal-fawid al-fiqhiyya. One of the most comprehensive works of legal maxims, and considered the first to have isolated and distinguished general legal maxims (qawid fiqhiyya) from specific maxims (awbi), and placed them in a separate monograph. Mujaddid = Muammad Umaym al-Isn al-Mujaddid al-Barakat al-Banjildsh, Qawid al-fiqh. Contains five tracts (rasil)the first mentioning Ul al-Karkh, the second Ul al-Dabs, and the third listing 426 qawid of the anaf madhhab. Published in 1407.

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Mliks Core Works Qarf (d. 684/1285), Anwr al-burq f anw al-furq. Maqqar (d. 758/1357), al-Qawid. Zaqqq (d. 912/1506), al-Minhj al-Muntakhab al Qawid al-madhhab. Didactic poem (manma) on which there are many commentaries. Wanshars (d. 914/1508) = al-maslik il qawid al-Imm Mlik & Uddat al-burq. Extended List Khushan (d. 361/981) = Muammad b. rith b. Asad al-Khushan, Ul al-futy f l-fiqh al madhhab al-Imm Mlik. This includes Mlik interpretive principles or presumptions (ul) and model cases (nair) from the schools body of legal rulings (fur) and some general principles of law (kulliyyt), organized according to fiqh chapters. Abd al-Wahhb b. Amad b. Abd al-Wahhb b. Jalaba al-Baghdd (d. 476/1083), alMajm wal-furq. Ms. 3822, Qarawiyyn Library, Fez. Partially published, 2003. Extract Muammad al-Rk, Qawid al-fiqhiyya min khill Kitb al-Ishrf al masil alkhilf lil-Q Abd al-Wahhb al-Baghdd al-Mlik (Dubai: Dr al-Buth lil-Dirst al-Islmiyya wa-Iy al-Turth, 2003) (Silsilat al-dirst alfiqhiyya, 10). Q Iy (d. 544/1149), al-Qawid or K. al-Ilm bi-udd qawid al-Islm. Published in 1998. Commentary Ibn al-Uqayi (d. 1001/1592-93), Shar Qawid al-Q Iy. Ms. (see below). Ibn al-jib (d. 646/1249), Kitb Muntah al-wul wal-amal f ilmay al-ul wal-jadal. Abridgement _____, Mukhtaar al-muntah al-ul. Qarf (d. 684/1285) = Shihb al-Dn, Kitb al-Furq: Anwr al-burq f anw al-furq. The principal work of Mlik qawid, containing fiqh studies and answers to problematic legal rulings. Qarf took these principles from Mlik fiqh chapters, analyzed them, and tried to solve the interpretive difficulties that distinguish one outcome from a divergent one in similar cases, therefore calling them furq (lit. differences or distinguishing features). According to Qarf, the work includes 584 qawid fiqhiyya.

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Commentaries Baqqr (d. 707/1307-8) = Ab Abd Allh Muammad b. Ibrhm, Tartb Furq alQarf or Mukhtaar Qawid al-Qarf. A rearrangement by summarizing the maxims and relevant cases of Qarfs work, indicating places where some matters are criticized, adding some maxims. It is organized according to the following chapters: universal legal maxims (qawid kulliyya), linguistic legal maxims (qawid naawiyya), interpretive canons (qawid uliyya), related principles (m yunsib tilka al-qawid), substantive legal maxims (qawid fiqhiyya) arranged by fiqh chapter. Ibn al-Sh (d. 723/1323) = Sirj al-Dn Qsim b. Abd Allh al-Anr, Idrr alshurq al Anw al-furq. A criticism and completion of Qarfs work; considered the most important work by Mliks. Muammad Al b. usayn al-Mlik (d. 768/1367-7), Tahdhb al-furq wal-qawid al-saniyya f l-asrr al-fiqhiyya. Taken from Ibn al-Shs commentary; published as a super-commentary (shiya) on the Furq. Extract al-Qawid wal-awbi al-fiqhiyya al-Qarfiyya: rumzat al-tamlkt almliyya, ed. dil b. Abd al-Qdir b. Muammad Wal Qtah (Beirut: Dr al-Bashir al-Islmiyya, 2004). Extracts on commercial law only from Qarfs work; but a good introduction to the field, esp. pp. 178-249. _____, Shar tanq al-ful f l-ul (Tunis: al-Mabaa al-Tnisiyya, 1910). _____, al-Umniyya f idrk al-niyya, ed., Musid b. Qsim al-Flih (Riyadh: Maktabat alaramayn, 1988). Though ostensibly about intention, this can be counted as a qawid work, according to Brn (see below), and as is published in that vein. Qaf (d. 736/1335-6) = Muammad b. Abd Allh b. Rshid al-Bakr, K. al-Mudhhab f ab qawid al-madhhab, ed., Muammad b. al-Hd Ab al-Ajfn (Ab Dhabi: alMajma al-Thaqf, 2002). Ibn al-jj al-Abdar (d. 737/1336) = Ibn al-jj Ab Abd Allh Muammad b. Muammad b. Muammad al-Abdar al-Mlik, Kitb al-Qawid. This contains 1200 qawid, but not all are qawid in the technical sense; most are awbi. A part of it has been edited in a dissertation from the Jmiat Umm al-Qurr in Mecca, and part of that has been published. Maqqar (d. 758/1357) = Ab Abd Allh Muammad b. Muammad b. Amad alMaqqar, al-Qawid, ed. Amad b. Abd Allh b. amd (Mecca: Jmiat Umm alQur, Mahad al-Buth al-Ilmiyya wa-Iy al-Turth al-Islm, Markaz Iy alTurth al-Islm, [198-]). This book gathers 1200 qawid and awbi extracted from Mlik fiqh works. Regarded like the Shfi book by Ibn al-Wakl for the Mliks, i.e., central. Organized according to fiqh chapters; includes some popular sayings as well.

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Aum al-Mlik (d. 782/1380-1) = Muammad b. Amad Ab Abd Allah, K. al-Musnad almudhhab f ab qawid al-madhhab. Ms. with a copy in the Tunisian National Library. Shib (d. 790/1388) = Ab Isq Ibrhm b. Ms b. Muammad al-Lakhm, alMuwfaqt f ul al-fiqh. Ab Abdullah Muammad b. Azm (d. 889/1484), al-Muhadhdhab f ab qawid almadhhab. A mix of cases with qawid, noting many of the qawid from his predecessors, especially Maqqar. Ms. 14,891, National Library of Tunis. Available in Mecca: Markaz al-Bath al-Ilm wa-Iy al-Turth al-Islm in Jmiat Umm al-Qur, no. 508, Fiqh Mlik, microfilm. Mikns (d. 901/1495) = Ibn Ghz Ab Abd Allh Muammad b. Amad, K. al-Kulliyyt al-fiqhiyya wal-qawid. Available in lithograph form by Muammad Ab l-Ajfn, a professor in the Kulliyyat al-Shara in Jmiat al-Zaytniyya in Tunis. Zaqqq (d. 912/1506) = Ab l-asan Al b. Qsim al-Zaqqq, al-Manhaj al-muntakhab al Qawid al-madhhab. Didactic poem (manma); with a close resemblance to Wansharss al-maslik such that it seems to be a didactic poem about it (though perhaps that there were contemporaries explains the close resemblance). It attracted numerous commentaries. Important Commentaries Manjr (d. 992/1584-5) = Ab l-Abbs, Amad b. Al al-Fs, Shar. Mukhtaar/Summary Muammad b. al-Taw, Mukhtaar. _____, al-Manjr al l-Minhj al-Muntakhab. Extract Gharbn (see below). Miyra al-Fs (d. 1072/1661) = Ab Abd Allh Muammad b. Amad Miyra al-Fs. A completion of Zaqqqs manma, adding qawid and cases in a manma as well, encompassing altogether 641 verses, followed by his own commentary. Commentaries Muammad Yay b. Muammad al-Mukhtr b. al-lib Abd Allah al, Shar. Walt (d. 1330/1912) = Muammad Yay b. Muammad al-Mukhtr b. al-lib Abd Allh al- thumma al-Walt, al-Dall al-mhir alni shar al-Majz al-wi f qawid al-madhhab al-rji. A long commentary with many fawid; gathering all of the qawid from al-Manhaj al-muntakhab, adding to them, and commenting on them.

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Abridgement Ab l-Qsim b. Muammad b. Amad al-Qawt, al-Isf bil-alab mukhtaar Shar al-Minhj al-muntakhab. Abridgement to the commentary of Manjrs qawid work. Wanshars (d. 914/1508) = Ab l-Abbs Amad b. Yay al-Wanshars, al-maslik il qawid al-Imm Mlik, ed. Amad B hir al-Khib (Rabat: Sundq Iy alTurth al-Islm, 1980). Includes 108 qawid, organized closely according to fiqh chapters; all of them are the qawid of juristic disputes (khilf) presented by way of question-and-answer. Commentaries Abd al-Wid al-Wanshars (d. 955/1548), no title. He wrote a didactic poem (manma) of his fathers work. Extract al-diq b. Abd al-Ramn al-Gharbn, ed., Tabqt qawid al-fiqh inda alMlikiyya: min khill kitbay al-maslik lil-Wanshars wa-Shar almanhaj al-muntakhab lil-Manjr (Dubai: Dr al-Buth lil-Dirst alIslmiyya wa-Iy al-Turth, 2002). _____, Uddat al-burq f jam m f al-madhhab min al-jum wal-furq, ed. amza Ab Fris (Beirut: Dr al-Gharb al-Islm, 1990). A list of seemingly contradictory cases, arguing that the legal rules in fact follow certain qawid or textual rules over others (and why there is no actual conflict). 1155 such cases listed with respect to opinions from the Mudawwana, mentioned in Furq, and commented on by other prominent Mlik jurists such as Ibn Araba and Ibn al-Arab. Muammad b. Abd al-Ramn al-Sajn al-Kins, Nam qawid al-Imm Mlik. Includes 83 verses/qawid. Ibn Ghazz (d. 919/1513) = Muammad b. Ghad al-Miknas, al-Kulliyyt al-fiqhiyya (al madhhab al-Mlikiyya). Mss. (Thesis from Zaytna). Ibn al-Uqay (d. 1001/1592-3), Shar Qawid al-Q Iy. Ms. Commentary on Q Iys Qawid. (Listed above.) Ab l-asan Al b. Abd al-Wid b. Muammad al-Anr al-Sijilms (d. 1057/1647), alYawqt al-thamna f nair lim al-Madna or K. Aqd al-jawhir f nam al-nair. Didactic poem (nam) of maxims of Mlik. Ms. 14708, National Library of Tunis. Ab Zayd b. Abd al-Qadir b. Al b. Ab al-Masin Ysuf al-Fs al-Maghrib (d. 1096/1684), al-Bhir f khtir al-Ashbh wal-nair. Walt (d. 1330/1912), commentary on Zaqqq (listed above) Modern Works Tawn, al-Isf bil-alab Mukhtaar shar al-Manhaj al-muntakhab lil-Tawn (listed above).

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Abd Allh al-Hill, al-Tqd al-fiqh inda al-q Abd al-Wahhb al-Baghdd al-Mlik: alqawid al-fiqhiyya al-mumayyaza li-fiqh al-Mlikiiyya namdhajan (Fez: Mabaat nf Print, 2004). Ab Abd Allh Muammad b. Ab al-Qsim al-Sijilms (d. 1800), Shar al-Yawqt althamna: f m antam li-lim al-Madna f al-qawid wal-nair wal-fawid alfiqhiyya (Riyadh: Maktabat al-Rushd Nshirn, 2004). Slim, Sad b. Al, Taysr al-marji wal-madrik li-qawid madhhab al-Imm Mlik: qira adtha f qawid al-fiqh al-Mlik (al-Ayn, Morocco: Dr Ysuf b. Tshfn, 2007). dil b. Abd al-Qdir b. Muammad Wal Qtah, al-Qawid wal-awbi al-fiqhiyya alQarfiyya: rumzat al-tamlkt al-mliyya (Beirut: Dr al-Bashir al-Islmiyya, 2004). Muammad al-Rki, al-Qawid al-fiqhiyya min khill Kitb al-Ishrf al masil al-khilf lilQ Abd al-Wahhb al-Baghdd al-Mlik (Dubai: Dr al-Buth lil-Dirst alIslmiyya wa-Iy al-Turth, 2003) (listed above). Shfis Core Works al-Izz b. Abd al-Salm (d. 660/1262), Qawid al-akm f mali al-anm. Ibn Wakl (d. 716/1316-7), al-Ashbh wal-nair. Ibn al-Al (d. 761/1360), al-Majm. Tj al-Dn al-Subk (d. 771/1370), al-Ashbh wal-nair. Zarkash (d. 794/1392), al-Manthr f tartb al-qawid al-fiqhiyya. Suy (d. 911/1505), al-Ashbh wal-nair. Extended List Shfi, Umm, in Ibn Abd al-amd, Abd al-Wahhb b. Amad, al-Qawid wal-awbi alfiqhiyya f kitb al-Umm lil-Imm al-Shfi: jaman wa-tartban wa-dirsatan (Riyadh: Dr al-Tadmuriyya, 2008). Q usayn (d. 462/1069) = Q usayn al-Marwaz, Qawid. Ibn Dst (d. 507/1113-4), al-Qawid. Not extant. Jjarm (d. 613/1216-7) = Mun al-Dn Muammad b. Ibrhm, al-Qawid f fur alShfiiyya. Zanjn (d. 656/1258-9) = Ab l-Manqib Shihb al-Dn Mamd b. Amad, K. Takhrj alfur al l-ul. He draws a connection between the fur and the particular cases (juziyyt) from fiqh cases to their ul, awbi and from the qawid toward defining the differences between the anaf and Shfi madhhabs; published by Muammad Adb li.

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Izz al-Dn Abd al-Salm (d. 660/1262) = Izz al-Dn Abd al-Azz b. Abd al-Salm alSulam, al-Qawid al-kubr = Qawid al-akm f il al-anm or li-mali al-anm, ed. Nazh Kaml ammd and Uthmn Jumua amriyya, 2nd ed. (Damascus: Dr al-Qalam, 2007). A collection and expansion on a single principle, of dar almafsid muqaddam al jalb al-mali, under which he says all maxims and fur fall. Commentaries Bulqn al-Asqaln (d. 805/1403), Fawid al-usm al qawid Ibn Abd al-Salm. Not extant. _____, al-Qawid al-ughr = al-Fawid f khtir al-maqid or Mukhtaar al-fawid f akm al-maqid, ed. Iyd Khlid al-abb (Beirut: Dr al-Fikr al-Muir; Damascus: Dr al-Fikr, 1996). Khall (d. 675/1276-7) = Ab l-Fal Muammad b. Al b. al-usayn, Qawid al-shar waawbi al-al wal-far. Said to be based on the Wajz. Nawaw (d. 676/1278), al-Ul wal-awbi or K. al-Qawid wal-awbi f ul al-fiqh or awbi al-ful, ed. Muammad asan Hayt (Beirut: Dr al-Bashir alIslmiyya, 1986). A very short work of qawid and awbi. Ibn al-Wakl (d. 716/1317) = adr al-Dn Ab Abd Allh Muammad b. Umar b. Makk b. Abd al-amad, al-Ashbh wal-nawir or al-nair, ed. Amad b. Muammad alUnqur (Riyadh: Maktabat al-Rushd, 1993). The start of the growth of the qawid works under the title of Ashbh. Al or Ibn al-Al (d. 761/1317) = al al-Dn Khall b. Kkld (?), al-Majm al-mudhhab f qawid al-madhhab. Tries to systematize, relying on Ibn al-Wakls work; not published. Commentaries & Abridgements Anon., Mukhtaar Qawid al-Al. arkhad (d. 792/1390) = Muammad b. Sulaymn al-arkhad, Mukhtaar alMajm al-muhdhab. A compilation joining Al and Asnaw. isn (d. 829/1426) = Taq al-Dn Ab Bakr b. Muammad, al-Qawid. A summary of Als Majm. _____, al-Ashbh wal-nair f fur al-fiqh al-Shfi . Ms. Commentaries Ibn al-Him (d. 810/1412 or 815 = Amad b. Muammad b. Imd, Tarr alqawid al-Aliyya wa-tamhd al-maslik al-fiqhiyya. _____, al-Qawid al-munaama. Not extant. Commentary Qabqab (d. 901/1495) = Ibrhm b. Muammad. Commentary on Ibn alHims manma.

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Ibn Khab al-Dahsha (d. 834/1431) = Ab l-Than Muammad b. Amad alHamadhn al-amaw, Mukhtaar Qawid al-Al wa-tamhd al-Asnaw, ed. Muaf b. Mamd al-Binjuwayn al-Irq. Tj al-Dn al-Subk, Ibn al-Subk (d. 771/1370) = Tj al-Dn Abd al-Wahhb b. Al b. Abd al-Kf al-Subk, al-Ashbh wal-nair, ed. dil Amad Abd al-Mawjd, Al Muammad Awa (Beirut: Dr al-Kutub al-Ilmiyya, 1991). B usayn calls this the most valuable work in the qawid genre of the 8th c. Asnaw (d. 772/1370) = Jaml al-Dn Abd al-Ram b. al-asan b. Al, al-Tamhd f stikhrj al-masil al-furiyya min al-qawid al-uliyya. Ms. Only (Brn). _____, al-Ashbh wal-nair (Muswadda mss.) Commentaries Ibn Khab al-Dahsha (d. 834/1431), Shar (listed above). arkhad (d. 792/1390), Shar (listed above). _____, Mali al-daqiq f tarr al-jawmi wal-fawriq. _____, Nuzhat al-nawir f riy al-nair. Bakr = Badr al-Dn Muammad b. Ab Bakr b. Sulaymn al-Bakr (d. after 772), K. alistighn (or al-itin) f l-furq al-istithn. Published. Sharaf al-Dn al-Ghazz (d 799/1397), al-Qawid f l-fur. Not extant. Zarkash (d. 794/1392) = Ab Abd Allh Badr al-Dn Muammad b. Bahdur b. Abd Allh al-Shfi, al-Manthr f tartb al-qawid al-fiqhiyya, ed., Muammad asan Muammad asan Isml (Beirut: Manshrt Muammad Al Bayn, Dr alKutub al-Ilmiyya, 2000). Commentaries Abbd (d. 947 or 941/1540-1) = Sirj al-Dn Umar b. Abd Allh, Shar Qawid alZarkash. Ms. Sharn (d. 973/1565), al-Maqid al-saniyya f l-qawid al-fiqhiyya [var. alshariyya]. Ms. Ibn al-Mulaqqin al-Andalus (d. 804/1401) = Ibn al-Mulaqqin Umar b. Al al-Anr, alAshbh wal-nair. Ms. Bulqn al-Asqaln (d. 805/1403). See above under Ibn Abd al-Salm. Muammad b. Muammad al-Ghazz (d. 808/1405-6) = Muammad b. Zubayr alGhayzar (?), Asn al-maqid f tarr al-qawid. Not extant. Ibn al-Him (d. 810/1412), Manma (listed above). Frzbd al-Shrz (d. 817/1415), Qawid al-akm. Ms. isn (d. 829/1426), Shar (listed above). Ibn Khab al-Dahsha (d. 834/1431), Shar (listed above).

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Shuqayr al-Maqdis (d. 876/1471-72) = Abd al-Ramn b. Al al-Maqdis, Nam aldhakhir f l-ashbh wal-nair. Not extant. Suy (d. 911/1505) = Jall al-Dn Abd al-Ramn al-Suy, al-Ashbh wal-nair. One of the most widespread qawid books. Commentaries, Abridgements, Didactic Poems Ibn al-Ahdal al-Yaman (d. 1035/1625), al-Farid al-bahiyya f l-qawid al-fiqhiyya. Ms. Fs al-Mlik (d. 1096/1685), al-Bhir f khtir al-Ashbh wal-nair. Nin (d. 1133/1720-21), shiya al l-Ashbh wal-nair. Ab Bakr b. Ab al-Qsim al-Ahdal (d. 1053), al-Farid al-bahiyya (didactic poem: manma). Commentary Abd Allah b. Sulaymn al-Jurhaz al-Yaman (d. 1201), al-Mawhib alsaniyya al l-Farid al-bahiyya. Commentary Muammad Ysn b. s al-Fdn al-Makk (d. 1376), al-Fawid al-janiyya shiyat al l-Mawhib al-saniyya. Published. Commentary Abd Allh b. Sad Muammad Abbd al-Laj al-aram [al-anbal?], al-Qawid al-fiqhiyya. Written for the students of the Madrasa al-ltiyya in Mecca, said to be the only place where qawid fiqhiyya was an independent part of the curriculum (though this is doubtful). Damlj (d. 1234/1819), Shar al-qawid al-khams. Ms. Fas al-Dn al-Baghdd (d. 1299/1881-92), shiya al l-Ashbh wal-nair. Saqqf (d. 1335/1916-7) = Alaw b. Amad al-Saqqf, al-Fawid al-Makkiyya f-m yatjuhu alabat al-Shfiiyya min al-masil wal-awbi wal-qawid al-kulliyya in Majmat sabat kutub mufda (Egypt: Sharikat Maktabat wa-Mabaat Muaf alBb al-alab, 1940). A collection of a number of short tracts, with certain sections on qawid, including a discussion of the 5 universal maxims and on the principle of murt al-khilf, among some others. Makk, Ab l-Fay Muammad Ysn b. s al-Fdn (b. 1335), al-Fawid al-janiyya, shiyat al-Mawhim al-saniyya shar al-Fawid al-bahiyya (by Abd Allh b. Sulaymn al-Jurhaz, f nam al-Qawid al-fiqhiyya by Ab Bakr b. Ab al-Qsim b. Amad b. Muammad b. Ab Bakr al-Ahdal al-usayn al-Yaman (d. 984) (fi al-Ashbh wal-nair by Jall al-Dn al-Suy), ed. Ramz Sad al-Dn Dimashqiyya (Beirut: Dr al-Bashir al-Islmiyya, 1991). A commentary on a poem that summarizes the Ashbh.
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Bakr (modern), al-Istighn f l-farq wal-istithn. anbals Core Works Ibn Taymiyya (d. 728/1328), al-Qawid al-nrniyya al-fiqhiyya. Ibn Rajab (d. 795/1393), Taqrr al-qawid wa tarr al-fawid. Ibn Mibrad li (d. 909/1503), al-Qawid al-kulliyya wal-awbi al-fiqhiyya. Extended List f, Najm al-Dn (d. 710 or 716/1316), al-Qawid al-kubr f fur al-anbila. Not extant. _____, al-Qawid al-ughr. Not extant. Ibn Taymiyya (d. 728/1328), al-Qawid al-nrniyya al-fiqhiyya. Comprises disputed matters of ritual (ibdt) and private law/commercial transactions (mumalt), with some legal maxims (qawid fiqhiyya) interspersed. For some, this is really a fiqh book, not a qawid work, as it deals with fiqh subjects such as purity, oaths, contracts and very few pure interpretive principles (qawid). Ibn Q al-Jabal al-Maqdis al-Dimashq (d. 771/1370), al-Qawid al-fiqhiyya. A qawid work that closely follows fiqh chapters. Ibn Qayyim al-Jawziyya (d. 751/1350) = Shams al-Dn Muammad b. Ab Bakr (d. 751), Badi al-farid. Ibn Q al-Jabal (d. 771/1369-70), al-Qawid al-fiqhiyya. Ibn Rajab (d. 795/1393) = Ab l-Faraj Abd al-Ramn b. Rajab, Taqrr al-qawid wa-tarr al-fawid. Mentions 160 legal maxims (qawid fiqhiyya), though most are specific maxims (awbi) along with some interpretive principles (qawid uliyya); all arranged according to fiqh chapters. Each maxim is specific to the anbal school, and his goal was to distinguish the ul of that school. Commentary Muibb al-Dn al-Baghdd (d. 844/1440-1), awsh al-qawid al-fiqhiyya and Mukhtaar qawid Ibn Rajab. Not extant. Ibn al-Lam (d. 803/1401), al-Qawid wal-fawid al-uliyya wa-m yataalluq bi-h min al-akm al-fariyya. Muibb al-Dn al-Baghdd (d. 844/1440-1), awsh al-qawid al-fiqhiyya and Mukhtaar qawid Ibn Rajab. Not extant. (Listed above.) Ibn al-Mibrad al-li (d. 909/1503) = Ysuf b. asan b. Amad b. Abd al-Hd, alQawid al-kulliyya wal-awbi al-fiqhiyya.

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Ysuf b. Abd al-Hd al-Maqdis al-anbal, Khtima [of above work? = Mughn dhaw alafhm an al-kutub al-kathra f l-akm. Considered a summary work of legal maxims, in which the author put 76 qawid. Amad b. Abd Allh al-Qr al-anaf (d. 1359/1940), Majallat al-akm al-shariyya al madhhab al-Imm Amad b. anbal. Sad (d. 1376/1956-7), Risla f l-qawid al-fiqhiyya. _____, al-Qawid wal-ul al-jmia wal-furq wal-taqsm al-bada al-nfia. _____, arq al-wul il l-ilm al-maml bi-marifat al-awbi wal-qawid wal-ul. Ab Abd Allh al-Smir , al-Furq. Copy located at the Ibn Sad Islamic University Library; parts edited and published by the Shariat University of Riyadh. Nir b. Abd Allh b. Abd al-Azz al-Maymn, al-Kulliyyt al-fiqhiyya f al-madhhab alanbal (Mecca: Nir b. Abd Allh al-Maymn, 1424/[2003-4]). Modern Works Amad al-Qr (d. 1359/1940), Qawid Majallat al-akm al-shariyya al madhhab al-Imm Amad b. anbal. Sad, Abd al-Rahman b. Nir (d. 1376/1956), Risla. Commentary on the didactic poem of al-Qawid al-fiqhiyya, both from the same author, covering 60 legal maxims (qawid fiqhiyya) and interpretive canons (qawid uliyya). Abd al-Musin b. Abd al-Azz al-yigh, Qawid al-istinb min alf al-adilla inda alanbila wa-thruh al-fiqhiyya (Beirut: Dr al-Bashir al-Islmiyya, 2004). These are interpretive principles (qawid uliyya), dealing with rules of interpretation. Shs (Imms) Core Works Yay b. al-asan b. Sad (d. 698/1298), Nuzhat al-nr f l-Ashbh wal-nair. al-Shahd al-Awwal (d. 786/1389), al-Qawid wal-fawid. Fil Miqdd (d. 826/1423), Nad al-qawid al-fiqhiyya al madhhab al-Immiyya. al-Shahd al-Thn (d. 996/1558), Tamhd al-qawid al-uliyya wal-arabiyya li-tafr fawid al-akm al-shariyya. Extended List Ab l-Makrim b. Zuhra (d. 585/1189), Ghunyat al-nuz il ilmay al-ul wal-fur. Dmd: It has some scattered legal principles. From the catalog search, this appears to be in al-Jawmi al-fiqhiyya ([Tehran: s.n.], 1276 [1859 or 1860]), unpaginated.

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Yay b. al-asan b. Sad al-ill = Najb al-Dn Yay b. al-asan b. Sad al-ill (d. 698). _____, al-Ashbh wal-nair = Nuzhat al-nr f l-jam bayn al-ashbh wal-nair (Najaf : Mabaat al-db, 1386/[1966]). This could be called the first work of qawid, if we consider al-ashbh wal-nair works of that genre. al-Muaqqiq al-ill (d. 676/1277) = Najm al-Dn Ab l-Qsim Jafar b. al-asan alMuaqqiq al-ill, Mutabar = Mutabar f shar Mukhtaar (Qum, Iran: Muassasat Sayyid al-Shuhad, [1364/1985]). Containing scattered legal principles. al-Allma al-ill (d. 771/1369) = Ibn al-Muahhar al-ill, Fakhr al-Muaqqiqn, Ab lib, Muammad b. al-asan b. Ysuf b. al-Muahhar al-ill, Qawid al-akm (f marifat al-all wal-arm) ([Qum] : al-Muassasa, 1413-19/[1992-99]). Translation (Persian) Kitb-i tijrat va qa va shahdat, asan Khn Mutasham al-Salana ([Tehran]: Mabaa-i Ilm, [1340/1921 or 1922]). Commentaries Muammad Jawd b. Muammad al-usayn al-mil (d. 1226/1811-12), Mift al-karma f shar Qawid al-Allma, ([Qum]: Muassasat l al-Bayt, [198-]). al-Muaqqiq al-Thn, Karak (d. 940/1536) = Al b. al-usayn al-Karak, Jmi almaqid f shar al-Qawid lil-Allma al-ill (Beirut: Muassasat l al-Bayt li-Iy al-Turth, 1991). Bah al-Dn al-mil (d. 1030/1621) = Muammad b. usayn, all laf li-ibra muila f Qawid al-akm. Ms. Garrett no. 538Y. al-Fil al-Hind (d. 1136/1724-5) = Bah al-Dn Muammad b. al-asan alIfahn, Kashf al-lithm an Qawid al-akm (Qum: Muassasat al-Nashr al-Islm, 1416- [1995 or 1996- ]). Al b. Kall Muammad al-Qazwn (d. 1290/1873), Kitb al-ahra min Nim alfarid f Shar Qawid al-akm (Tehran: Mabaat gh Mrz Al Aghar, n.d.). _____, al-fawid f all (or shar) mushkilat (or ishklt) al-Qawid. Commentary on the former work ([Qum]: Bunyd-i Kshnpr, Muassasa-i Mabt-i Ismliyyn, 1363/[1984]). _____, Kitb Kashf al-fawid li-yat Allh f al-lamn al-Allma al-ill f Shar Qawid alaqid li-nar al-aqq wal-milla wal-dn Khawja Nar al-s ([Tehran?: s.n.], 1312 [1895]). al-Shahd al-Awwal (d. 786/1389), al-Qawid wal-fawid (Tehran, 1308). Considered the first work of Sh qawid, though the work is mostly definitions and divisions, containing qawid fiqhiyya, awbi, and qawid uliyya. It is also a comparative study with Sunn schools, and appears to have relied heavily on Qarfs Furq and Ibn Abd al-Salms Qawid al-akm, plus on Suys Ashbh. It is the subject of many commentaries at least 12 and restatements.

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Commentaries, Supercommentaries, Restatements Miqdd al-Suyr (d. 826/1423) = Ab Abd Allh al-Fil al-Miqdd al-Suyr. [Two commentaries: Jam al-fawid and Nad al-qawid. See below.] Ab l-Qsim al-Faqn al-mil (d. 850/1466), shiya. Ab Qsim al-mil (d. 855/1451-2), shiya. Zayn al-Dn Ibrhm b. Al al-Kafam (d. 900/1495-6) or Taq al-Dn Ibrhm b. Al al-rith al-Kafam, Ikhtir [var. Mukhtaar] Qawid al-Shahd. A revision and recasting of Shahd Is work. Zayn al-Dn al-mil (d. 965/1558-9) = Zayn al-Dn b. Al b. Amad al-mil, Tamhd al-qawid al-uliyya wal-arabiyya li-tafr fawid al-akm alshariyya. al-Shahd al-Thn (d. 966/1599-60), Tamhd al-Qawid. (Listed below.) Bah al-Dn al-mil. (d. 1056/1646). Commentary in the margin of al-Qawid. Mrz Q b. Kshif al-Dn Muammad al-Yazd (d. 1056/1646-7). shiya /supercommentary on just a single maxim. Muammad b. Al al-arfsh al-mil (d. 1059/1649-50), al-Qalid al-saniyya. Commentary, in the margin of Qawid. asan Al b. Abd Allh al-Tustar (d. 1075/1665-6). shiya. Mrz Ab Turb (d. 1292/1875-6) = Mrz gh, Shar. Khu (d. 1350/1931) = Al b. Al Ri al-Khu. shiya. Ibn Mamd or Muammad b. Muammad al-usayn al-ir al-ihrn =Ar (d. 1356/1937), shiya. Muammad b. Muhammad Bqir = al-Fil al-ravn (d. 1306/1889-90). shiya. Isml b. Najaf al-Marand (d. 1318/1900). shiya. Mrz Muammad b. Sulaymn Tunikbun (d. 1302/1884), shiya. Unpublished. Fil Miqdd (al-Suyr) (d. 826/1423) = Fil Miqdd b. Abd Allh al-Suyr al-ill (d. 826). NB: Heinrichs mistakenly attributes this to al-Allma b. al-Muahhar alill rather than Shahd I. (Listed above.) _____, Nad al-qawid al-fiqhiyya al madhhab al-Immiyya or ahl al-Bayt. A rearrangement of Shahd Is Qawid according to fur chapters. _____, Jmi al-fawid f talkh al-qawid. An abridgement and systematization of Shahd Is Qawid; also rearranged according to fur. Ibn Ab Jumhr (d. ca. late 9th/15th century) = Muammad b. Al b. Ibrhm al-As, alAqb al-fiqhiyya al madhhab al-Immiyya, ed. Muammad al-assn (Qum: Maktabat yat Allh al-Um al-Marash al-Najaf, 1401/1989-90). Contains 46 aqb (s. qub), i.e., brief tracts on ul, fiqh, and evidentiary issues that very loosely follow fiqh organizations after the ul topics.
477

al-Shahd al-Thn (d. 996/1558), = Zayn al-Dn b. Al Jab mil, Tamhd al-qawid aluliyya wal-arabiyya li-tafr fawid al-akm al-shariyya (Qum : Maktab al-Ilm al-Islm, 1374/[1995]). Abridgement or rearrangement of Shahd Is Qawid. Commentary Anon., Kashf al-fawid min Tamhd al-qawid. Ms. Amad al-Narq (d. 1209/1794), Awid al-ayym (Tehran, 1266) _____, Manhij al-akm (Tehran, 1269). Kshif al-Ghi (d. 1227 or 8/1813) = Ms b. Muhammad Ri l Kshif al-Ghi, alQawid al-shariyya or al-qawid al-sitta ashar (Tehran, 1316), published together with the authors al-aqq al-mubn. al-Mawl Amad b. Muammad al-Mahd b. Dharr al-Narq al-Kshn (d. 1245/182930), Awid al-ayym min muhimmt adillat al-akm. Includes 88 ida, each of which is considered a qida fiqhiyya; followed by a detailed study of its import. Soon to be published by Markaz al-Abth wal-Dirst al-Islmiyya al-Tbi liMaktab al-Ilm al-Islmiyya. Sharatmadr (d. 1263/1847) = Muhammad Jafar al-Astarbd, al-Maqld al-Jafariyya (f l-qawid al-ithnay ashriyya . Mss. in Ayatollah Marash Library Nos. 3857, 3858, 3882, 3883. Margh (d. 1274/1858-9) = Abd al-Fatt b. Al al-usayn al-Margh, al-Anwn (alul) ([Tehran]: n.p., 1297/[1880]). Includes 93 entries (unwn) [sic = inwn] of qawid fiqhiyya, frequently quoting from his mentor without naming him; probably referring to Kshif al-Ghi. Ibn bid al-Shayrawn al-Darband (d. 1275/1859-60), Khazin al-akm. gh b. bid al-Shrwn al-Darband (d. 1285), Khazin al-akm. Isml b. Al Naq al-Tabrz (d. 1295/1878), al-Qawid al-shariyya. Abd al-ib Muhammad b. Amad al-Narq (d. 1297/1868-9), Mashriq al-akm (Tehran, 1294). Muammad Mahd al-Qazwn al-ill al-Najaf (d. 1300/1882), Qawid. Covers 75 qawid fiqhiyya. Muammad Bqir al-Yazd al-ir (d. ca. 1300/1882). Not extant. Naar Al al-lqn (d. 1306/1888-9), Man al-akm ([Tehran]: n.p., 1304/[1886]). Muammad Bar al-Ulm al-abab (d. 1326/1908-09), Bulghat al-faqh. Includes Risla f l-farq bayn al-aqq wal-ukm (Tehran: Maktabat al-diq, 1984; Najaf: Mabaat al-Adab, 1968). Muammad usayn Yazd (d. 1329/1911), al-Qawid al-fiqhiyya. Ms. in Martyr Muahhar College (Masjid Sepahslr).

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abb al-Kshn (d. 1340/1922), Mustaq qawid al-madrik wa-muntah awbi alfawid. Includes 500 qawid fiqhiyya with short commentaries on each. Also called Tashl al-maslik. Mahd b. usayn b. Azz al-Khli al-Kim (d. 1343/1924), al-Qawid al-fiqhiyya. Fatt b. Muammad Al al-Shahd al-Tabrz (d. 1372), commentary together with Hidyat al-lib. l Kshif al-Ghi (d. 1373/1954) = Muammad usayn Kshif al-Ghi, Tarr alMajalla. Bujnrd = asan b. gh Buzurg al-Msaw al-Bujnrd, al-Qawid al-fiqhiyya (Qum, 1424). A list of 64 qawid fiqhiyya with commentary on each as to the legal basis, purpose of qida, and applications. The editor says that it is unsurpassed in its value, in that it covers a wide range of topics, i.e., most of the qawid, in terms of provenance (sanadan), application (dalla), and comparison (muqrana). Anon., al-Qawid al-Bqiriyya. Ms. Muammad asan al-Shrz, al-Mujaddid, al-Qawid al-usayniyya (compiled lectures). Mahd b. usayn b. Azz al-Khli al-Kim, al-Qawid al-fiqhiyya. Anonymous. Kashf al-fawid min Tamhd al-qawid. Ms. Abd Allh Shubbar (?), al-Ul al-aliyya wal-qawid al-shariyya. Nir Makrim al-Shrz, al-Qawid al-fiqhiyya (Qum: Madrasat al-Imm Al b. Ab lib, 1425/[2004-5]). Muammad Fil al-Lankarn, al-Qawid al-fiqhiyya (Qum: Markaz Fiqh al-Aimmat alAhr, 1425/[2004-5-]), with an introduction by Muammad Jawd al-Fil alLankarn. Contains 20 general qawid mostly related to worship, property, and procedure. Muammad Taq al-Faqh (al-mil), al-Qawid al-fiqhiyya (Lebanon: Mabaat r alditha, 1963). Muammad al-Khmina, Lamt al l-qawid al-fiqhiyya f l-adth al-Kimiyya. Written for the 3rd world conference on Imam Ri (March 1988), published in Majmat al-thr al-Mutamar al-lam al-thlith lil-Imm al-Ri, 1:169-258 treating 23 maxims drawn from Imam Ms b. Jafars adth; includes 23 qawid fiqhiyya that come from (mustalla min) from Imm Ris adths. Muammad al-Msaw al-Bujnrd, al-Qawid al-fiqhiyya. (Persian.) Muammad Jawd al-Muafaw, al-Qawid. Includes 100 qawid fiqhiyya. Muaf Muaqqiq Dmd, Qawid al-fiqh (Arabic) and Qavid-i fiqh (Persian) (Tehran: Ulm-i Islm, [13]63-/[1984-2000]). Mrz Mamd Dhahb Khursn (d. 1321/1904), Qavid-i fiqh. jj Shaykh Al Bb Frz-Khi, Qavid-i fiqh (Persian, frequent reprints).

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Ayatollah Muammad if al-Musin, al-Qawid al-uliyya wal-fiqhiyya f l-Mustamsak of Ayatollah Musin al-akm, ed. Mahd al-Niyz al-Shhrd (Qum: Quds, 1382). Anon. (written before 1312), al-Qawid al-Bqiriyya. Ms. Muammad asan al-Shrz, al-Mujaddid, al-Qawid al-usayniyya, his lectures compiled by asan b. Isml al-Qumm al-ir. Ms. abb Allh al-Kshn, Tashl al-maslik (Tehran, 1374).

Secondary Sources Listings by Topic Core Works (English) Heinrichs, Wolfhart, Structuring the Law: Remarks on the Furq Literature, in Ian Richard Netton, ed., Studies in Honour of Clifford Edmund Bosworth, vol. I: Hunter of the Easy: Arabic and Semitic Studies (Leiden: Brill, 2000), pp. 332-44. _____, Qawid as a Genre of Legal Literature, in ed. Bernard Weiss, Studies in Islamic Legal Theory (Brill: Leiden, 2002), 366-84. _____, art. awid Fihiyya, in Encyclopaedia of Islam 2-Supplement (EI2), ed. Th. Bianquis, P. Bearman , C.E. Bosworth , E. van Donzel, and W.P. Heinrichs (Online Edition: Brill, 2008). Kamali, Mohammad Hashim, Legal maxims and other genres of literature in Islamic jurisprudence, Arab Law Quarterly 20,1 (2006): 77-101. _____, Sharah Law: An Introduction (Oxford: Oneworld, 2008), chapter 5 (Legal maxims of fiqh), pp. 141-61. Schacht, Joseph, Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), chapter 6 (Legal Maxims), pp. 180-89. General Overviews (Arabic, Persian, etc.) Ajln, Abd al-Azz, al-Qawid al-kubr f fiqh al-Islm (Riyadh: Dr ayba, 1996). B usayn, Yaqb, al-Qawid al-fiqhiyya: al-mabdi, al-muqawwimt, al-madir, aldalliyya, al-taawwur (Riyadh: Maktabat al-Rushd, Sharikat al-Riy, 1418/1998). Bujnrd, al-Qawid al-fiqhiyya (Najaf: Mabaat al-db, n.d.). Brn, Muammad idq b. Amad, al-Wajz f qawid al-fiqh al-kulliyya (Beirut: Muassasat al-Risla, 1404/1983; Riyadh: Maktabat al-Marif, 1410/1990). _____, Mawsat al-qawid al-fiqhiyya (Beirut: n.p., 1416/1955f). Maman, ub, Falsafat al-tashr f l-Islm (Beirut 1946); transl. Farhat. J. Ziadeh, The Philosophy of Jurisprudence in Islam (Leiden 1961), 289-390.
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Mir, Ahmad Muhammad al-uar, K. al-Qawid al-fiqhiyya lil-fiqh al-Islm. Published in 1413 in Cairo: Maktabat al-Kulliyyt al-Azhariyya; presenting the Risla of Karkh, the Ul of Dabs, Qawid [sic = Ashbh] of Ibn Nujaym, and some qawid from other schools, along with an annotated bibliography of some of the qawid books, ending in an explanation of the 5 universal qawid and some derivative qawid. Muaqqiq Dmd, Mustaf, Qavid-i fiqh (Farsi), 4th ed., 3 vol. (Szimni Muli-i va Tadvn-i Kutub-i Ulm-i Insn-i Dnishgh-h: Tehran 1380/2001). Trans. (English) Faridani Azarmidukht, The Codification of Islamic Juridical Principles (qawid fiqhiyya): A Historical Outline, Hikmat 1:1 (1995): 89-107. Also Mustaf Muaqqiq Dmd, Qavid-i fiqh (Tehran: Markaz nashr-i ulm-i Islm, 1378), 3rd ed., 4:44-88. Nadw, Al Amad, al-Qawid al-fiqhiyya: mafhmuh, nashatuh, taawwuruh, dirst muallaftih, muhimmatuh, tabquh, 4th ed. (Damascus: Dar al-Qalam, 1418/1998). _____, al-Qawid wal-awbi al-mustakhlaa min Tarr lil-Imm Jaml al-Dn al-ar, 546636 AH (Saudi Arabia: s.n.; Cairo: al-Mabaa al-Madan, 1991). Compilation and commentary of qawid fiqhiyya extracted from the anaf jurist ars commentary on Shaybns al-Jmi al-kabr. Wil, Muhammad ammd al-, Qawid. Small book in 10 parts, discussing the definition of qawid, categories, importance, published in 1407. Zarq, Muaf Amad, al-Madkhal al-fiqh al-mm (Damascus: Dr al-Qalam, 1418/1998). The third part is al-qawid al-kulliyya, vol ii, pp. 965-1091. Zarq, Amad, Shar al-qawid al-fiqhiyya, ed. Abd al-Sattr Ab Ghudda (Beirut: Dr alGharb al-Islm, 1403/1983). Zuayl, Muammad b. Wahba, K. al-Naariyyt al-fiqhiyya. 4 chapters, the first three explaining the theories of capacity (ahliyya), wilya, and urf, and the fourth on the universal qawid; published in 1414. Umar b. Sulaymn al-Ashqar, K. Maqid al-mukallifn. Originally a PhD dissertation for Azhar, published in 1401. Abd al-Faqr Muammad idq b Amad b. Muammad al-Brn al-Ghazz Ab lrith, K. al-Waj f qawid al-fiqh al-kulliyya. Gathers 180 qawid fiqhiyya, and the six major qawid (al-qawid al-sitt al-kubr) and derivative qawid, with a brief explanation of the meaning of each qida, legal basis, examples, differences between the madhhabs; first published in 1404, before Brns Mawsa. Said Aqil Husein al-Munawar, Pertumbuhan ilmu fiqh, ushul al-fiqh, dan qawid fiqhiyyah, in Abuddin Nata, ed., (Rawamangun, Jakarta, Indonesia: Kencana, 2003). On interpretation and construction of Islamic law in Indonesia; collection of articles.

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Abd al-Hd al-Fal, al-Was f qawid fahm al-nu al-shariyya (Beirut: Muassasat alIntishr al-Arab, 2001). A look at qawid relating to different types of texts, e.g., mm, kh, including a chapter on al-na al-shar (al-kitb, al-sunna, man al-man, pp. 113-58). This is a nice short summary of the major ul problems in the form of qawid. Imporant Mecelle Studies Murteza Bedir, Fikih to Law: Secularization through Curriculum, Islamic Law and Society 11, 3 (2004): 378-401. Hallaq, Wael Can the Sharia be Restored? in Islamic Law and the Challenges of Modernity, eds., Yvonne Yazbeck Haddad and Barbara Freyer Stowasser (Walnut Creek, CA; Oxford: AltaMira Press, 1994). Maman, ub, Falsafat al-Tashr f l-Islm. Beirut, 1946. Transl., F. J. Ziadeh, The Philosophy of Jurisprudence in Islam. Leiden, 1961. Mardin, erif Arif, Some Explanatory Notes on the Origins of the Mecelle (Medjelle), The Muslim World 50 (1961): 189-96 and 51 (1961), 274-79. Omar, S.S., The Majalla, in Khadduri, M. and H. Liebesny, eds., Law in the Middle East: Origin and Development of Islamic Law. Washington DC 1955/New York 1984: 292.

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BIBLIOGRAPHY Note on Style For Arabic and Persian transliteration, I generally follow a modified version of the International Journal of Middle Eastern Studies style. Modifications include the following: I omit the final t marbas (h) from names and places and nisbas, and omit the initial definite article from proper names when mentioned alone; the silent a (alif) of the definite al and of place-holding alifs at the start of certain verb forms are elided and replaced by an apostrophe when preceded by a vowel (e.g., idra l-udd not idra aludd and fa-lam not fa-ilam); the conjunction wa (and) and prepositions bi (in or with) and li (to) are typically assimilated into the same set of alifs without the dash that normally separates them from following words (e.g., wal-sriq and bil-shubaht and lilimm, but wa-ajma and li-abk). Only Qurnic verses are fully voweled. The three editions of the Encyclopaedia of Islam are shortened to EI1, EI2, and EI3. Where I have used the work collecting major works of Sh law (Murwrds Silsilat al-yanb al-fiqhiyya (1993)), I refer to the work by title in YF. When citing court cases from the American Supreme Court, I follow the Bluebook style of citation, though for other citations of articles, books, and manuscripts, I general follow the Chicago Manual of Style, 15th edition. Finally, I have attempted to provide dates for both AH (after the Hijra) and CE (common era) where relevant in the text and the margins, and I have provided death dates in the bibliography in that style (e.g., 786/1384) for premodern figures; unless otherwise specified, references to a single date (e.g., the tenth century) are typically to the common era. Where I have used more than one edition, I group them in the bibliography, and I parenthetically note the year of which edition was used in the text of the dissertation. Encyclopedias Dnishnma-i jahn-i Islm. Edited by Ghulm-Al addd dil (Tehrn: Bunyd-i Dirat al-Marif, 1375). Encyclopaedia Iranica. Edited by Ehsan Yarshater. London and Boston: Routledge and Kagan Paul, 1982-. Encyclopaedia of Islam, First Edition (EI1). Edited by T.W. Arnold, R. Basset, H.A.R. Gibb, R. Hartmann, W. Heffening, M.Th. Houtsma, E. Lvi-Provenal, and A.J. Wensinck. Leiden: Brill, 1913-38. Encyclopaedia of Islam, Second Edition (EI2). Edited by P. Bearman , Th. Bianquis, C.E. Bosworth , E. van Donzel, and W.P. Heinrichs. Leiden and London: Brill, 1960-. Encyclopaedia of Islam Three, Third Edition (EI3). Edited by G. Krmer, D. Matringe, J. Nawas, and E. Rowson. Brill Online, 2007-. Encyclopedia of Philosophy. Edited by Donald M. Borchert. 2nd ed. Detroit: Macmillan Reference USA, 2006. al-Mawsa al-fiqhiyya. Kuwait: Wizrat al-Awqf wal-Shun al-Islmiyya, 1987.
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