Faculty Bibliography

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.

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

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.