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Doubt Jurisprudence in Early Islamic Law and Society (7th-- 9th-Centuries)

A lecture by Intisar Rabb, Boston College Law School

Thursday, October 14, 2010
3:00 PM - 5:00 PM
10383 Bunche Hall
Los Angeles, CA 90095

Depictions of Islamic criminal law and legal interpretation feature somewhat of an awkward contradiction.  On the one hand, a Weberian portrait of Islamic law depicts the traditional qadi under a tree, whimsically dispensing justice as if he were in Alice’s Wonderland.  If we were to gaze solely at the eclectic rulings of qāḍīs without a look at the political and theological edifice to the law, we might gain this impression.  On the other hand, a common view of Islamic law imagines a code that descended from on high expressing the will of an angry and intolerant god committed to amputating hands and executing apostates.  In the first picture, the law is wholly unknown outside of the qadi’s own mind, and in the second, it is abundantly clear and relentlessly harsh.  These contradictory portrayals raise important questions about Islamic law, its interpretive process, and possibilities for flexibility in the law and legal change.  This project takes up these questions through examining how judges asserted their own authority in the form of legal maxims—-judge-made principles—-that purported to fill gaps left in the text of divine law.  A famous legal maxim of Islamic criminal law directs judges to “avoid imposing criminal sanctions in cases of doubt: idra’ū 'l-ḥudūd bi'l-shubahāt.  Medieval Muslim jurists of the first three centuries of Islamic history (7th-9th centuries) and beyond applied this maxim with increasing frequency.  One explanation is that the maxim was the jurist’s tool to favor and curry favor with the political elite in exchange for positions of power and privilege.  Yet, there are other factors at work that better explain the prevalence of the maxim against the backdrop of a dicey social and political landscape wherein the maxim was often used to challenge political authorities.  In response to the caliphs’ assertion of increasingly wide discretion over criminal matters to favor their friends and punish their foes, jurists insisted on an egalitarian application of law through developing a “jurisprudence of doubt” as encapsulated in the maxim.  Jurists were neither Weber’s qadi nor his draconian counterpart.  Instead, driven by moral anxieties about getting the law right, jurists deployed legal maxims with increasing success to assert their own interpretative authority over and above that of the political leaders, articulate a set of core public-moral values to guide their interpretations of the law, and make Islamic legal interpretation far more flexible than it otherwise would be. 

Intisar A. Rabb is a member of the law faculty at Boston College Law School, where she teaches in the areas of advanced constitutional law, criminal law, and comparative and Islamic law.  She is also a research affiliate at the Harvard Law School Islamic Legal Studies Program and a 2010 Carnegie Scholar, awarded a grant for her research on "Islamic Law and Legal Change: The Internal Critique," which examines criminal law reform in the Muslim world.  Her research in comparative law and legal history combines a policy-oriented assessment of public values with analyses of various schools of legal interpretation in different systems of law.  She is particularly interested in questions at the intersection of criminal justice, legislative policy, and judicial process in American law and in the law of the Middle East and the wider Muslim world.

Rabb received a BA with honors from Georgetown University, a JD from Yale Law School, and a PhD in Near Eastern Studies at Princeton University, where her dissertation--which won the Princeton Bayard and Cleveland Dodge Memorial Thesis Prize for Best PhD Dissertation--focused on the history and function of legal maxims in Islamic law.  She served as a law clerk to the Hon. Thomas L. Ambro of the U.S. Court of Appeals, Third Circuit, and subsequently worked with members of the bench and bar in the U.K. as a Temple Bar Scholar through the American Inns of Court.

In law school, Rabb served on the editorial boards of the Yale Journal of International Law and the Yale Human Rights and Development Law Journal, as well as on the board of the Black Law Students Association; she also worked in the Criminal Defense Clinic and at the Connecticut Public Defender’s Office.  She currently serves as a Member of the Executive Committee of the Yale Law School Association and the Princeton Graduate School Leadership Council, and she remains active in the Yale Law School Middle East Legal Studies Seminar.

Rabb has traveled for research to Egypt, Iran, Syria, and elsewhere. She speaks Arabic and Persian and has reading proficiency in French, German, and Spanish.

Cost : Free and Open to the Public

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