Faculty Bibliography

Yabancı hukuka yargısal atıf yapılmasına ilişkin tartışmalarda hâkimler değerleri tartışmaktadır. Ancak çoğu zaman tartıştıkları değerleri kabul etmemektedirler veya çoğunluk ve muhalif görüşlerde neden bir değeri diğerine tercih ettiklerine dair özel gerekçeler sunmamaktadırlar, bunun yerine genel bir iddiada bulunmak için olumsuz yabancı hukuk modellerini benimsemeyi tercih ediyorlar. Bu fenomenin bir örneği, keyfiliğe atıfta bulunmak için "kadijustiz" kelimesinin (Max Weber tarafından ortaya atılan ve Yargıç Felix Frankfurter tarafından 1949'da alınan bir kararla yaygınlaştırılan bir terim) Amerikan yargısal atfıdır. Ancak bu uygulama iki nedenden dolayı yanlıştır. Birincisi, İslam hukuk tarihçilerinin Orta Çağ'dan erken modern dönemlere kadar Memlük, Osmanlı ve diğer mahkemelerdeki İslami yargı prosedürlerini ayrıntılı olarak incelerken uzun zamandır işaret ettiği gibi, bu doğru değildir. İkincisi, kadijustiz'e yargısal atıf, tartışmalı yargısal karar alma süreçlerinde belirli değerlerin diğerlerine göre benimsenmesinin nedenlerini gizlemekte ve böylece, buna atıf yapan hakimlerin argümanlarını genel olarak zayıflatmaktadır.

The striking thing about medieval Islamic criminal law is that it featured a jurisprudence of doubt and lenity facing off against political practices of control and severity. Principles of Islamic criminal law placed interpretive authority in the group of scholar-jurists who gained expertise to read divine texts to say what the Law is (sharīʿa). Practices of Islamic criminal law authorized executive authorities—caliphs, sultans, and their agents—power over law enforcement (siyāsa). Principles informed the task of expert jurists and state-appointed judges in defining legitimate punishment derived from Islam’s foundational texts. Practices informed the wide array of severe punishment that law enforcement officials meted out regularly, with a justification that it was “in the public interest” (maṣlaḥa). Principles often justified limited punishment by means of “deterrence” (zajr) and “spiritual rehabilitation” (kaffāra). Practices often justified unrestrained punishment as a means of maintaining law and order, social control, or might as right. The principles of punishment, practices of punishment, and justifications for punishment typically operated in siloes separated by a wide plain. This chapter explores the ground where they met.Examining both principles and practices of medieval Islamic criminal law can shed light on some of the most pressing questions of old criminal law (Islamic and otherwise): What is the extent of convergence or divergence between Islam’s principles and practices? How, from juristic or social-political accounts of criminal justice, can we explain the types of punishments we see on the books and in the world as we know it?To answer these questions, I will explore the principles-practices divergence by first examining the legal sources. Then I will review them alongside narratives of social-political practices. For the legal principles, I draw on previous work outlining medieval Islamic criminal law and the expansive role of doubt in substantive law and in criminal procedure. To explore the practices, I canvas Maḥmūd Shaljī’s seven-volume Encyclopedia of Punishment (Mawsūʿat al-ʿadhāb), in which he collects all mentions of “punishment” from a well-known set of historical chronicles and other literary sources from the eighth century onward. I supplement his sources with the less-covered Seljuq, Mamlūk, and Ottoman-era accounts of punishment that Christian Lange (2012), Carl Petry (2008), and others have collected in their studies. By combining views of criminal law from the pens of medieval jurists together with accounts of contemporaneous acts reporting on their less verbose executive counterparts, I offer depictions of how each side tended to approach crime and punishment.

Spanish AbstractLa autora examina desde un punto de vista comparativo la historia del crimen y castigo en las sociedades islámicas. En la mayoría de los estudios sobre derecho penal islámico, los principios, prácticas y justificaciones del castigo suelen presentarse como compartimentos estancos entre los cuales media una amplia distancia. El artículo explora el terreno en el que se encuentran dichos compartimentos, situando el foco en los principios y prácticas del derecho penal en la Siria omeya, el Iraq abbasí y el Egipto mameluco. Al presentarnos este proceso, la autora ilustra el rasgo más llamativo del derecho penal islámico medieval. Dicho rasgo consiste en lo que ella denomina una «jurisprudencia de la duda y de la lenidad o de la benevolencia» que contrasta con las «prácticas políticas de control y severidad». Al abordar este contraste señala que se puede llegar mucho más lejos en el conocimiento de este campo de estudio prestando atención no sólo a los principios legales y a las prácticas, sino también a las razones que justifican la vigencia del derecho penal islámico.English Abstract:This article examines the history of crime and punishment in Islamic societies, comparatively. In most studies of Islamic criminal law, the principles, practices, and justifications for punishment typically operate in siloes separated by a wide plain. This lecture explores the ground where they meet. This lecture focuses on the criminal law principles and practices in Umayyad Syria, ‘Abbasid Iraq, and Mamluk Egypt. In the process, she illustrates the most striking feature of medieval Islamic criminal: it featured a «jurisprudence of doubt and lenity» in contrast to «political practices of control and severity». In addressing that contrast, she argues that more insight can be gained by approaching the field with greater attention to not only the principles, practices, but also the justifications for Islamic criminal law.الملخصتبحث المؤلفة من وجهة نظر مقارنة في تاريخ الجريمة والعقاب في المجتمعات الإسلامية. في معظم دراسات القانونالجنائي الإسلامي، جرت العادة على تقديم مبادئ، وممارسات، ومبررات العقوبة كمقصورات منفصلة عن بعضها البعض.و يستكشف هذا المقال الحقل الذي تلتقي فيه هذه المقصورات بالتركيز على مبادئ وتطبيقات القانون الجنائي في سورياالأموية، والعراق العباسي، ومصر المملوكية. ومن خلال تقديم المؤلفة هذا المسار لنا، فهي تبرز السمة الأبرز في القانونالجنائي الإسلامي في العصور الوسطى. وتتمثل هذه السمة فيما تسميه بفقه الشك والتساهل أو الرأفة الذي يتعارض معالممارسات السياسية التي تتميز بالسيطرة والصرامة. وفي معالجة هذا التناقض، فهي تشير إلى أنه من الممكن تحصيلمعرفة معتبرة في هذا المجال من خلال الاهتمام ليس فقط بالمبادئ والممارسات القانونية، بل أيضًا بالأسباب التي تبررسريان القانون الجنائي الإسلامي.

This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.

This talk takes a comparative law look at shared methods of interpretation for textualists in two very different legal systems: American law and Islamic law. The focus is on the history and use of certain legal canons—principles of interpretation that judges derive from a kind of interpretive common law and use to resolve ambiguity when confronting novel issues that the text alone does not plainly address. For reasons that a comparative law look will make clear, there is an area of shared textual/linguistic legal canons with shared features about how language works: metacanons. Recognizing them in each system and across systems can inform how best to define textual canons, and to what ends American judges should use them in an era of increased use of legal canons but decreased Court-Congress dialogue.

How should we think about the most pressing questions of Islamic law and legal history today? We asked leading scholars of Islamic law and history to weigh in on the methods and meaning they notice or favor, at a time when much has changed in the field and the world since Islamic law emerged as a major field of studies in the global academy over the last century, and at a time when access to new sources, historiographical advances, and data science tools promise that more changes are yet to come.

In her essay concluding the Roundtable, Intisar Rabb invites us to conduct a thought experiment— to think of legal canons as memes, that is, as cultural elements in circulation that, like genes, self-replicate and accrue to the benefit of human society. Just as memes spread, so do legal canons—principles that guide legal interpretation—from one scholar to another, from one written record to the other. Describing at length multiple angles from which legal canons can be categorized, Rabb shows that the many and varied types of canons illustrate how deeply embedded canons are in the social, cultural, and also legal culture that produces them. That, in turn, invites close collaboration between legal historians and data scientists to enable a mapping of a “meme pool” for legal canons, which she pursues through developing the Courts & Canons project at Harvard Law School: through digital tools, we will be able to trace the curious textual travels of legal canons (as memes), and through that, the transmission of cultures, practices, and ideas in through all manner of texts (their meme pool) recording the history and practice of law and society in the Muslim world.

This interview was conducted by Intisar Rabb (Editor-in-Chief). This interview is part of the Islamic Law Blog’s Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb.

In this inaugural issue of Harvard Law School’s Journal in Islamic Law, we use the new Forum, designed for scholarly debate on recent developments and scholarship in the field, to feature a Symposium on the passage of a new 'Islamic Criminal Code' in Brunei. This new criminal code has generated extensive international media attention but little close analysis. In this Forum, four scholars offer scholarly essays that examine the contours of this new legislation and the extent to which it intersects with antecedents in Islamic history and with precedents in modern criminal law and procedure, comparatively. With a foreword by Intisar A. Rabb, Mansurah Izzul Mohamed, Dominik M. Müller, and Adnan A. Zulfiqar assess the history, workings, and critiques surrounding Brunei’s new code. Accompanying their essays is the SHARIAsource Online Companion to the Forum on Islamic Criminal Law in Brunei, which provides the text of each law, and of its antecedents, at beta.shariasource.com.

Equality and nondiscrimination norms within Islam are illustrated by episodes that display how decision makers interpret conscience claims made on the basis of or within contexts of Islamic law. This chapter centers primarily on ways in which Islamic law decision makers consider such claims from transsexual and transgender communities in the Muslim world. In 1986, the leader of Iran’s Revolution issued a fatwā authorizing sexual reassignment surgery. The government subsequently set up a “sex-change bureaucracy” to simultaneously accommodate and regulate the procedure. Yet norms of gender — rather than equality — animated the accommodation. The failure to address equality norms exemplifies typical (though not essential) approaches to Islamic law in Muslim majoritarian contexts. By contrast is a Muslim minoritarian context: Muhammad Ali’s conscience claim by which he sought exemption from the military draft for the Vietnam War based on his Islamic convictions. The U.S. Supreme Court eventually granted the exemption on a technicality that also sidestepped the question of equality. Nevertheless, this episode positively shaped equality norms in the U.S., over time, and gender-based litigation in the majoritarian Muslim world has the potential to do likewise — through reasoned consideration and interpretation of conscience claims. This chapter explores the interpretation behind such claims.

What is the role of Islamic law in literature and, reflexively, the role of literature in Islamic law? We set about to answer this intriguing question, often asked in other interpretive communities of law and literature, with reference to one of the most acclaimed storytellers in early Islamic history.¹ Abū ʿAlī al-Muḥassin al-Tanūkhī (d. 384/994) was a scholar of Arabic-Islamic literature who doubled as a judge, and had something to say about both law and literature, though not necessarily in ways one might expect. His were not stories about the literary themes of law. They were not like dramatizations of

Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298 (2018).

“Information wants to be free.” Although this sentiment dominates the current digital landscape, information about Islamic law and history often remains bound to its physical form and to the price of acquiring it. One should not have to travel to several countries or be associated with the handful of institutions with large collections in these fields to gain access to these sources (which can still be onerous once there). But this is precisely the case for those who aim to do serious, comparative, or otherwise broad-ranging work in Islamic law. For Islamic law, there is a persistent problem of access and ease of use.

During the lifetime of the Prophet Muḥammad and the expansion of the young Islamic empire immediately after his death, a number of land tracts were distributed to his Companions and Family members. One of them was a fertile farm called Yanbuʿ, located northwest of Medina. Having acquired the land, the Prophet’s cousin, son-and-law, caliph-to-be ʿAlī b. Abī Ṭālib discovered a spring that he named Bughaybigha, which fed what was to become a much-coveted date-palm orchard. He immediately turned it into a charitable endowment to be managed by his heirs. But when ʿAlī was killed in a struggle for the caliphate, chaos and confusion ensued—one feature of which was a generations-long battle over the land. For the next one hundred fifty years, Umayyad and ʿAbbāsid rulers episodically wrested the land from ʿAlī’s descendants each time the latter succeeded in securing its return. At one point in the midst of the political contestation, the affair ended up in court. There, the case turned on the judge’s creative interpretation of and choice between conflicting procedural rules. The outcome was a split decision that gave only a partial win to the caliph and a partial win to the ʿAlid descendant who had been cultivating the land. Judicial discretion and procedure, it turns out, was instrumental to resolving hotly contested issues of Islamic law, land, and legitimate rule. In fact, the case vividly displays how judges like the one at the center of this case helped construct Islamic law through their interpretive approaches to such issues that lay at the heart of disputes like Bughaybigha.

This book presents an in-depth exploration of the administration of justice during Islam’s founding period, 632–1250 CE. Inspired by the scholarship of Roy Parviz Mottahedeh and composed in his honor, this volume brings together ten leading scholars of Islamic law to examine the history of early Islamic courts. This approach draws attention to both how and why the courts and the people associated with them functioned in early Islamic societies: When a dispute occurred, what happened in the courts? How did judges conceive of justice and their role in it? When and how did they give attention to politics and procedure? Each author draws on diverse sources that illuminate a broader and deeper vision of law and society than traditional legal literature alone can provide, including historical chronicles, biographical dictionaries, legal canons, exegetical works, and mirrors for princes. Altogether, the volume offers both a substantive intervention on early Islamic courts and on methods for studying legal history as social history. It illuminates the varied and dynamic legal landscapes stretching across early Islam, and maps new approaches to interdisciplinary legal history.

Doubt pervades most laws, becomes alarming when it arises in criminal law, and seems especially discomfiting in the context of Islamic criminal law. In the high-stakes area of American criminal prosecutions, dubious facts or ambiguous laws can result in unjustified deprivations of life, liberty, or property. Criminal prosecutions in early Islamic contexts bore similar risks, which were compounded by the idea of a divine lawgiver who had outlined a set of fixed criminal laws and harsh punishments. In this system, there was no legislature to update the law, no high court to authorize departures from it, and no prosecutor charged with proving facts beyond a reasonable doubt. These features made-and continue to make--doubt in Islamic criminal law not only concerning but also ubiquitous.

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.

Bringing together essays on topics related to Islamic law, this book is composed of articles by prominent legal scholars and historians of Islam.

Bringing together essays on topics related to Islamic law, this book is composed of articles by prominent legal scholars and historians of Islam.

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.

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.

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.

This important two-volume work contains over 700 alphabetically arranged entries, contributed and signed by international scholars and experts in fields such as Arabic languages, Arabic literature, architecture, history of science, Islamic ...