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Table Of Contents

I. Debates: Questions of Institutional and Interpretive Authority
II. History: The Rise and Pre-History of Legal Maxims Literature
III. Function: Concepts of Doubt and Assertions of Authority
*A Note on Islamic Criminal Law
I. Introduction
II. The Ḥudūd Maxim as a Ḥadīth?9
A. Early Ḥadīth Collections
B. Scholarly Perspectives on the Ḥudūd Maxim as a Ḥadīth
III. Ḥudūd Maxim amongst Early Jurists
A. Ḥanafīs and the Use of the Maxim in Iraq
B. Other Early Jurists
IV. Splicing Maxims for a Touch of Class
A. Attribution and Circulation: Two Different Circles
B. Legal-Theoretical Rejection of Class-Based Distinctions
V. The Ḥudūd Maxim amongst Later Jurists
A. Juristic Proponents
B. Juristic Detractors (or Reluctant Adherents)
VI. Conclusion
II. Competing Values: Morality and Authority
A. Egalitarianism and Judicial Subservience
B. Social Status and Political Power
C. Hierarchy and Ḥudūd Laws
III. Competing Cases: Imposition vs. Avoidance and Dealing with Doubt
A. Ḥudūd Imposition: Egalitarianism and Judicial Subservience
1. Religious Egalitarianism: The Case of the Makhzūmī Thief
2. Judicial Subservience: Ṣafwān’s Case and The Case of the Drunken Orphan
B. Ḥudūd Avoidance: Fairness & Moral Anxiety
1. Death is Different: The Case of Māʿiz and Stoning for Adultery
2. ʿAlī: Exemplar of Justice
C. A Mixed Bag: Public Virtue, Private Vice
1. Privatizing Vice
2. Delineating Public
3. Defining Doubt
II. Early Shāfiʿīs
A. Ḥudūd Definition, Commission, Imposition
1. Defining Criminal Elements
2. Against Lenience
B. Ḥudūd Avoidance
1. Mens Rea: Subjective Indicia
2. Proving the Elements
C. Early Shāfiʿī Shubha
III. Early Ḥanafīs
A. Ḥudūd Imposition
1. Mens rea: Objective Indicia
2. Finality
2. Primacy of Contracts
C. Early Ḥanafī Shubha
IV. Early Mālikīs
1. Mens Rea: Quasi-Objective Indicia and Shifting Burdens
2. Criminal Elements and Convention
1. Criminal Elements and Completion
2. Finding Shubha: The Judicial Role
C. Early Mālikī Shubha
V. Conclusion
II. Subjectivity and Mens Rea: Ḥanafī Shubha
A. Developing Ḥanafī Shubha
B. Developed Ḥanafī Shubha
1. Mistake of law is an excuse—If Reasonable
2. Mistake of fact also is an excuse—if plausible
3. Creating mistake through contract
C. Shubha as Subjectivity
III. Accommodation and Legal Pluralism: Mālikī and Shāfiʿī Shubha
A. Developing Mālikī and Shāfiʿī Shubha
1. Mistake of law is an excuse for the layperson
2. Mistake of fact also can be an excuse – regardless of intent
B. Interpretive Ambiguity and Legal Pluralism
1. Legal Pluralism and Interpretive Ambiguity
2. Mālikī Interpretive Shubha and The Fiction of Knowledge of the Law
C. Shubha as Interpretive Difference
IV. Fault Lines: Strict Liability & Moral Values
A. Consensus Cases of Strict Liability
B. Against Contracting Ambiguity
C. Moral Values as Limits on Ḥudūd Avoidance
II. Ḥanbalī Shubha
A. Ibn Ḥanbal: Faithful Agent of Mixed Traditions
1. Contested Ḥudūd Avoidance
2. Expanded Ḥudūd Avoidance
3. Rejected Ḥudūd Avoidance
C. Ḥanbalī Doubt Jurisprudence
III. Ẓāhirī Shubha
A. Developing Ẓāhirī Textualism
B. A Textualist Theory of Ambiguity and the Principle of Precaution
1. Reading Traditions in Andalusia: Authentication
2. Interpretive Consistency: Social Status and Social Mores
3. Knowledge and Certainty: Burdens of Proof
C. Ẓāhirī Doubt Jurisprudence
IV. Conclusion
II. Shīʿī Debates: Rationalists vs. Traditionalists (Uṣūlīs vs. Akhbārīs)
A. The Battlefield: Theological-Legal Debates
1. The Ḥudūd Maxim and Presumptions of Law
1. Toward a Conservative Rationalism: Innocence on Textualist Bases
2. Toward a Liberal Rationalism: Innocence on Rational Bases
1. Ambiguity between Law and Fact, Obligation and Prohibition
2. Ambiguity and Avoidance: One Right Answer as Text
3. Interpretive Process: Textual Canons and Constrained Discretion
D. Rationalist Riposte: Reason after Revelation as the Right Answer
III. Conclusion: The Ḥudūd Maxim and the Innocence Presumption
Bibliographical Guide to Legal Maxims Literature
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Published by: Aboo Talhaa on Jun 27, 2011
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