Intisar A. Rabb

Professor of Law

Director, Islamic Legal Studies Program

Susan S. and Kenneth L. Wallach Professor, Harvard University Radcliffe Institute for Advanced Study

Professor of History, Harvard University Faculty of Arts and Sciences

Assistant: Ashley Fournier / 617-495-7653

Biography

Intisar A. Rabb is a Professor of Law at Harvard Law School and a director of its Islamic Legal Studies Program. She also holds an appointment as a Professor of History at Harvard University and as a Susan S. and Kenneth L. Wallach Professor at the Radcliffe Institute for Advanced Study. She previously served as an Associate Professor at NYU Department of Middle Eastern and Islamic Studies and at NYU Law School, and as an Assistant Professor at Boston College Law School; and teaches courses in criminal law, legislation and theories of statutory interpretation, and Islamic law. She also served as a law clerk for Judge Thomas L. Ambro of the United States Court of Appeals for the Third Circuit, as a Temple Bar Fellow in London with the American Inns of Court, and as a 2010 Carnegie Scholar for her work on contemporary Islamic law reform. In 2015, she received awards from the Luce Foundation and the MacArthur Foundation for SHARIAsource – an online portal for content and context on Islamic law, designed to make available primary sources as well as informed scholarly commentary about them freely available. She has published on Islamic law in historical and modern contexts, including the monograph, Doubt in Islamic Law (Cambridge University Press 2015), an edited volume, Law and Tradition in Classical Islamic Thought (with Michael Cook et al., Palgrave 2013), and numerous articles on Islamic constitutionalism, Islamic legal maxims, and on the early history of the Qur'an text. She received a BA from Georgetown University, a JD from Yale Law School, and an MA and PhD from Princeton University. She has conducted research in Egypt, Iran, Syria, and elsewhere.

Areas of Interest

Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law, Cambridge Series in Islamic Civilisation (Cambridge Univ. Press 2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Abstract
This book considers an important and largely neglected area of Islamic law by exploring how medieval Muslim jurists resolved criminal cases that could not be proven beyond a doubt, calling into question a controversial popular notion about Islamic law today, which is that Islamic law is a divine legal tradition that has little room for discretion or doubt, particularly in Islamic criminal law. Despite its contemporary popularity, that notion turns out to have been far outside the mainstream of Islamic law for most of its history. Instead of rejecting doubt, medieval Muslim scholars largely embraced it. In fact, they used doubt to enlarge their own power and to construct Islamic criminal law itself. Through examination of legal, historical, and theological sources, and a range of illustrative case studies, this book shows that Muslim jurists developed a highly sophisticated and regulated system for dealing with Islam's unique concept of doubt, which evolved from the seventh to the sixteenth century.
Intisar A. Rabb, The Least Religious Branch? The New Islamic Constitutionalism after the Arab Spring, 17 UCLA J. Int'l L. & Foreign Aff. 75 (2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Intisar A. Rabb, The Islamic Rule of Lenity, 44 Vand. J. Transnat'l L. 1299 (2011).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
,
Legal Theory & Philosophy
Type: Article
Abstract
This Article explores an area of close parallel between legal doctrines in the contexts of Islamic law and American legal theory. In criminal law, both traditions espouse a type of “rule of lenity”—that curious common law rule that instructs judges not to impose criminal sanctions in cases of doubt. The rule is curious because criminal law is a peremptory expression of legislative will. However, the rule of lenity would seem to encourage courts to disregard one of the most fundamental principles of Islamic and American legislation and adjudication: judicial deference to legislative supremacy. In the Islamic context, such a rule would be even more curious, allowing Muslim judges to disregard a deference rule even more entrenched than the American one: a divine legislative supremacy to which judicial deference should be absolute. Yet, there is an “Islamic rule of lenity” that pervades Islamic criminal law. This Article examines the operation of and justifications for the lenity rule in the American and Islamic contexts against the backdrop of theories of law and legislative supremacy that underlie both. In both contexts, the lenity rule acts serves to expand the operation of judicial discretion. But whereas the use of American lenity is fraught and limited, Islamic lenity is relatively uncontroversial and expansive. With the Islamic rule of lenity, we see both stronger legislative supremacy doctrines and more assertions (albeit hidden) of judicial authority to legislate. An examination of the role of lenity in Islamic law with respect to American law explains differences in the scope and exercise of judicial discretion in each legal system. It can also lead us to reconsider common public law theories that characterize rules of deference to doctrines of legislative supremacy and nondelegation as a constraint on judicial discretion
Intisar A. Rabb, We the Jurists': Islamic Constitutionalism in Iraq, 10 U. Pa. J. Const. L. 527 (2008).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Abstract
This article examines the implications of incorporating Islamic law in a modern democratic constitutional context. The new Iraqi constitution's designation of Islamic law as "a source of law" placed the issue of Islamic law's role in new democracies at the forefront of the debates on "Islamic constitutionalism" - governing structures characterized by written constitutions that incorporate Islamic law. With its incorporation of both Islamic law and democratic/human rights provisions, the Iraqi constitution establishes a scenario where the government must legislate or adjudicate with respect to a set of dual norms. What challenges does the government face in attempts to legislate and adjudicate vis-a-vis an ostensibly religious legal system? Must it delineate a relationship between its traditional three branches and Islamic law's traditional interpreters (the jurists)? This article takes up these questions, positing that the role of Islamic law in an Islamic constitutional regime revolves around issues of interpretation and the institutional relationship between the government and the jurists. Taking the debates about family law reforms as a case study, the article assesses ways in which sentiments about Islamic law play out in discussions of popular sovereignty ("we the people"), juristic input ("we the jurists"), and legal reform. By comparing Iraq to existing models for Islamic constitutionalism, the article shows how the prospects for progressive laws and legal reform in Iraq depend on the form of Islamic constitutionalism adopted. More generally, the article offers insights in the areas of Islamic law and legislation in contemporary contexts of democracy - building, legal reform, and rule-of-law.
Intisar A. Rabb, Society and Propriety: The Cultural Construction of Defamation and Blasphemy as Crimes in Islamic Law, in Accusations of Unbelief in Islam: A Diachronic Perspective on Takfir 434 (Sabine Schmidtke et al. eds., 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Intisar A. Rabb, "Reasonable Doubt" in Islamic Law, 40 Yale J. Int'l L. 41 (2015).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Intisar A. Rabb, Against Kadijustiz: On the Negative Citation of Foreign Law, 48 Suffolk U. L. Rev. 343 (2015).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Islamic Law
,
Comparative Law
,
Foreign Law
Type: Article
Abstract
In the arguments about the judicial citation of foreign law, judges are arguing about values. But they often do not acknowledge the values that they are debating or give specific rationales for why they prefer one value over the other in their majority and dissenting opinions, preferring instead to adopt negative models of foreign law against which to make a general claim. One example of this phenomenon is the American judicial citation of “kadijustiz” — a term introduced by Max Weber and popularized by Justice Felix Frankfurter in a 1949 decision — to refer to arbitrariness. But this practice is wrong because for two reasons. First, it is inaccurate, as Islamic legal historians have long pointed out in detailing Islamic judicial procedure in Mamluk, Ottoman, and other courts from the medieval to early modern periods. Second, judicial citation of kadijustiz obscures the reasons for adopting certain values over others in contested judicial decision-making, thereby weakening invoking-judges’ arguments overall.
Intisar A. Rabb, Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear, in Law and Tradition in Classical Islamic Thought 145 (Michael Cook et al. eds., 2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Abstract
Bringing together essays on topics related to Islamic law, this book is composed of articles by prominent legal scholars and historians of Islam.
Law and Tradition in Classical Islamic Thought: Studies in Honor of Professor Hossein Modarressi (Intisar A. Rabb, Michael Cook, Najam Haider & Asma Sayeed eds., Palgrave MacMillan 2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Abstract
Bringing together essays on topics related to Islamic law, this book is composed of articles by prominent legal scholars and historians of Islam.
Intisar A. Rabb, Governance (al-Siyāsa al-Sharʿiyya), in in The Princeton Encyclopedia of Islamic Political Thought 197 (Gerhard Böwering et al. eds., 2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Intisar A. Rabb, Police, in The Princeton Encyclopedia of Islamic Political Thought 427 (Gerhard Böwering et al. eds., 2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Intisar A. Rabb, Negotiating Speech in Islamic Law and Politics: Flipped Traditions of Expression, in Islamic Law and International Human Rights Law 144 (Anver M. Emon, Mark Ellis & Benjamin Glahn eds., 2012).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Abstract
In this volume, leading experts in Islamic law and international human rights law attempt to deepen the understanding of human rights and Islam, paving the way for a more meaningful debate.
Intisar A. Rabb, Islamic Legal Maxims as Substantive Canons of Construction: Hudūd-Avoidance in Cases of Doubt, 17 J. Islamic L. & Soc. 63 (2010).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Abstract
Legal maxims reflect settled principles of law to which jurists appeal when confronting new legal cases. One such maxim of Islamic criminal law stipulates that judges are to avoid imposing hudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence (idra'ū'l-hudūd bi'l-shubahāt): the "hudūd maxim." Jurists of all periods reference this maxim widely. But whereas developed juristic works attribute it to Muhammad in the form of a prophetic report (hadīth), early jurists do not. Instead, they cite the maxim as an anonymous saying of nonspecific provenance in a form unknown to hadīth collectors of the first three centuries after Islam's advent. This difference in the jurists' citations of the maxim signals a significant shift in claims to legal authority and the asserted scope of judicial discretion, as jurists debated whether and how to resolve legal and factual doubt. While political authorities exercised increasingly wide discretion over criminal matters and used it to benefit the elite, most jurists promoted an egalitarian "jurisprudence of doubt" through insisting on criminal liability for high-status offenders and heightening claims of the authoritativeness and scope of the hudūd maxim as a hadīth.
Intisar A. Rabb, Non-Canonical Readings of the Qurʾān: Recognition & Authenticity, 8 J. Qurʾānic Stud. 84 (2006).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
,
Religion & Law
Type: Article
Abstract
Recently, Yasin Dutton published ‘Some Notes on the British Library's “Oldest Qur'an Manuscript” (Or. 2165)’, in which he concludes that this 1st/7th century Qur'anic manuscript aligns with the Damascene reading of Ibn Āmir. Dealing with the same manuscript, this paper first qualifies that conclusion and attempts to shed more light (and raise further questions) on the location and number of the manuscript copyists or editors by examining variants in orthography, verse-divisions, the style of the text, and symbols within the manuscript, with attention to both the canonical and non-canonical variants. When viewed alongside studies of Qur'anic history rooted in traditional Hadīth, some observations emerge that have to do with the two overwhelming, and somewhat paradoxical features of the manuscript: its striking uniformity and the discrepancies within it. The second section of this paper thus seeks to evaluate this manuscript against works on the qirācāt tradition and its systemetisers, in order to seek out clues for a clearer view of the pre-canonical landscape of readings, and indeed of the nature of the canon itself. It notes the apparent fluidity of Qur'anic manuscript production and readings transmission, identifies concerns that may have driven tradition-minded scholars to settle the text, and explores the criteria they developed for assessing recognition and authenticity in the formation of the canon.
Intisar A. Rabb, Book Review, 30 Yale J. Int'l L. 343 (2005) (reviewing Lessons in Islamic Jurisprudence (Muḥammad Bāqir aṣ-Ṣadr auth., Roy Mottahedeh trans., 2003)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Intisar A. Rabb, Book Review, 27 Yale J. Int'l L. 233 (2002) (reviewing Giving Meaning to Economic, Social and Cultural Rights (Isfahan Merali & Valerie Oosterveld eds., 2001)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article

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Assistant: Ashley Fournier / 617-495-7653