Intisar A. Rabb



Adviser: Hossein Modarressi November 2009

UMI Number: 3388074

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ABSTRACT DOUBT’S BENEFIT: LEGAL MAXIMS IN ISLAMIC LAW, 7th-16th centuries This dissertation examines the history, function, and debates surrounding legal maxims (qawāʿid fiqhiyya) and concepts of doubt and ambiguity in Islamic law. Legal maxims are succinctly stated principles that jurists use as key interpretive tools when applying texts and settled precedents to new cases. As gap-filling measures to address situations for which there is no plain statement of law, maxims allow jurists tremendous leeway in formulating new precedents. Studying the juristic usage of legal maxims can reveal much about a legal system’s interpretive processes and the values of the jurists employing them. This is particularly true in criminal law, which reflects value-laden rules of societal (or divine) condemnation for certain behaviors and which—in classical Islamic contexts—straddled political-legislative and juridicalinterpretive divides. Accordingly, my work focuses on maxims of criminal law that place certain limitations on the definition and imposition of criminal sanctions and—by extension—the reach of legitimate political authority. The “ḥudūd maxim” developed into the central maxim of Islamic criminal law, requiring judges to “avoid imposing criminal sanctions in cases of doubt or ambiguity” (idraʾū ʾl-ḥudūd biʾl-shubahāt). My detailed study of this single maxim is illustrative of the genre of legal maxims, which first appear in the 1st/7th century. These maxims were distilled and collected in multiple treatises of legal maxims beginning in the 7th/13th centuries, continuing through the 10th/16th centuries, and—after a period of less robust activity—reemerging as an important field of inquiry in modern times. This study serves as a mechanism for addressing global questions about the development and operation of legal maxims with specific emphasis on criminal law and the role of the jurists in constructing and defining doubt together with the institutional, societal, and/or moral values that motivated them to do so. This dissertation makes interventions in fields of Islamic legal history and criminal law theory within a broadly comparative framework drawing on recent studies of American legal maxims. My research demonstrates the centrality of legal maxims to judicial deliberations in Islamic law—especially in criminal law. It shows how jurists used legal maxims to accommodate and adjust to new circumstances. And it displays how these maxims and the representations of them in the legal literature represent matured principles of Islamic law resulting from long periods of deliberation and change as jurists and political officials negotiated the borders of shared but thin lines between issues of authority, discretion, and the rule of law.


in honor of my brother


ACKNOWLEDGEMENTS Words cannot adequately express the depth of my gratitude for my advisor, Hossein Modarressi. Without doubt, he has been the model mentor, scholar, teacher. Through his work and our interactions, he has shown me what conscientious scholarship means. Rather than attempt to force words to do what they cannot, I will endeavor in my own work to draw from his example to constantly seek and to make positive contributions to scholarship and the law, to scholars and scholars-to-be. I am profoundly grateful to the other members of my committee. Michael Cook offered the benefit of his rigor and quality of scholarship, which set exacting standards pursued in my own work. He patiently read through voluminous chapters with a critical and meticulous eye (and pen!), managing always to make incisive observations from quite unexpected corners. Kim Lane Scheppele encouraged me to address broader questions of law and society. She introduced me to the sociology of law and asked the sorts of questions that prevented me from settling for an account of what the legal sources told us in favor of examining what the lacunae and other sources exposed about what law was and what its actors were really doing. James Whitman helped shape this project in crucial ways from the beginning as he urged me to think deeply about core concepts in Islamic law and legal history with questions of serious comparative law in mind. His challenging comments prompted me to better identify and explore relevant concepts; the result was to make this survey richer than it would have been and set the stage for further pursuing what he has called the “unique strength of comparative law” gained by uncovering key relative differences to reveal fundamental values in the legal systems we study. These scholars share a blatant disregard for boundaries designed to separate one academic discipline from another, and collectively provided a model for me as I shuttled physically and intellectually between Princeton University and Yale Law School, navigating worlds of legal (along with social and intellectual) history, legal theory, and area studies. I am appreciative of other teachers at Princeton, Yale, and elsewhere. At Princeton, Mark Cohen, Andras Hamori, Abraham Udovitch, M. Qasim Zaman, and Aron Zysow each left an impression on particular aspects of this project. Special thanks to Amineh Mahallati for, amongst other things, teaching me Persian, and to Azar Ashraf for helping me with Persian sources. At Yale, I am especially grateful for the insights and support proffered by William Eskridge, Jr., Anthony Kronman, and Daniel Markovits. Elsewhere, I have been privileged to benefit from exchanges with and the stellar work of a number of other scholars, especially Sherman Jackson, Baber Johansen, Wael Hallaq, Wolfhart Heinrichs, Roy Mottahedeh, plus others in Iran and Syria. And the lessons I learned working with Thomas L. Ambro were invaluable. There are a great many friends and colleagues—who were also my teachers—to whom I would like to express thanks for stimulating conversations and recommendations: Rashid Alvi, Mohammad Fadel, Najam Haider, Tariq al-Jamil, Nancy Khalek, Racha El Omari, Emmanuel Papoutsakis, Behnam Sadeghi, Asma Sayeed, Jack Tannous, and Laura Weinrib. Particular thanks to those who read and commented on

multiple chapters, often in very rough form and sometimes on short notice: Katharina Ivanyi, Lena Salaymeh, Ahmed El Shamsy, Mairaj Syed, and Adnan Zulfiqar. Heartfelt thanks to Seven Ağir. Over many meals and spirited debates, as her regard for ‘law and order’ shifted from derision to appreciation, she stoked in me a similar shift regarding ‘law and economics’ by insisting on drawing close attention to the social logic of class and its intimate relationship to justice or the lack thereof. Several institutional awards of financial and other support facilitated the research necessary for this project. Princeton University and the Department of Near Eastern Studies provided generous fellowship funding for my initial years at Princeton, and the deans at the Graduate School have been especially accommodating to my nontraditional course of study. The Program in Law and Public Affairs granted some funding, but more importantly, as ‘Princeton’s law school,’ it and its denizens provided an intellectual second home. The University Center for Human Values awarded a yearlong fellowship, as did the Mrs. Giles C. Whiting Foundation. The Center for the Study of Religion offered two years of funding and thought-provoking workshops. I have also received grants from the Foreign Language and Area Studies Program, the Hanna Fund, the Omar Foundation, the Princeton Institute for International and Regional Studies, the Princeton Council of the Humanities, and the Roothbert Fund. Thanks are due to the helpful staff at the libraries and archives at which I worked or visited—first and foremost, those at Firestone Library in Princeton, and also caretakers of libraries in Cambridge, Damascus, Dublin, Istanbul, London, New Haven, Rabat, Qum, and Vienna— in pursuit of manuscripts and other sources of legal maxims that provided the framing for this project and laid the groundwork for the next. Finally, humble thanks to my family: my parents in particular, who first taught me about principles.


TABLE OF CONTENTS ABSTRACT ................................................................................................................................................. iii ACKNOWLEDGEMENTS ............................................................................................................................. v TABLE OF CONTENTS...............................................................................................................................vii INTRODUCTION .......................................................................................................................................... 1 I. Debates: Questions of Institutional and Interpretive Authority ..................................... 3 II. History: The Rise and Pre-History of Legal Maxims Literature ...................................... 9 III. Function: Concepts of Doubt and Assertions of Authority ........................................... 16 *A Note on Islamic Criminal Law ................................................................................................... 22 CHAPTER 1. Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt ...................................................................................................... 28 I. Introduction .......................................................................................................................... 28 II. The Ḥudūd Maxim as a Ḥadīth? ........................................................................................... 32 A. Early Ḥadīth Collections ................................................................................................ 32 B. Scholarly Perspectives on the Ḥudūd Maxim as a Ḥadīth ......................................... 34 III. Ḥudūd Maxim amongst Early Jurists.................................................................................. 40 A. Ḥanafīs and the Use of the Maxim in Iraq ................................................................. 40 B. Other Early Jurists.......................................................................................................... 45 IV. Splicing Maxims for a Touch of Class ................................................................................ 50 A. Attribution and Circulation: Two Different Circles .................................................. 52 B. Legal-Theoretical Rejection of Class-Based Distinctions ......................................... 59 V. The Ḥudūd Maxim amongst Later Jurists .......................................................................... 64 A. Juristic Proponents ...................................................................................................... 64 B. Juristic Detractors (or Reluctant Adherents) ........................................................... 70 VI. Conclusion ............................................................................................................................. 78 APPENDIX. Ḥadīth Versions of the Ḥudūd Maxim and Isnād Map ........................................ 81 CHAPTER 2. Ḥudūd Imposition vs. Avoidance: Law, Society, and the Jurisprudence of Doubt .................................................................................... 90 I. Introduction .......................................................................................................................... 90 II. Competing Values: Morality and Authority .................................................................... 93 A. Egalitarianism and Judicial Subservience .................................................................. 93 B. Social Status and Political Power ................................................................................ 98 C. Hierarchy and Ḥudūd Laws ......................................................................................... 102

III. Competing Cases: Imposition vs. Avoidance and Dealing with Doubt ....................... 111 A. Ḥudūd Imposition: Egalitarianism and Judicial Subservience ............................... 117 1. Religious Egalitarianism: The Case of the Makhzūmī Thief ................................. 117 2. Judicial Subservience: Ṣafwān’s Case and The Case of the Drunken Orphan ....... 119 3. Moral Anxiety: Jurists as Opposition to Status-Reinforcing Undercriminalization ...................................................................................................... 123 B. Ḥudūd Avoidance: Fairness & Moral Anxiety........................................................... 126 1. Death is Different: The Case of Māʿiz and Stoning for Adultery ....................... 126 2. ʿAlī: Exemplar of Justice ........................................................................................ 140 a. Judicial Acumen: ʿAlī vs. ʿUmar ........................................................ 141 b. Ḥudūd Avoidance: Death is Dramatically Different....................... 147 c. Ḥudūd Imposition: Reluctant Enforcement.................................... 149 3. Generalizing Death-is-Different: Jurists as Opposition to FairnessDisregarding Overcriminalization ...................................................................... 154 C. A Mixed Bag: Public Virtue, Private Vice ................................................................. 161 1. Privatizing Vice ..................................................................................................... 162 2. Delineating Public ................................................................................................. 166 3. Defining Doubt ....................................................................................................... 176 APPENDIX. Table of Cases Cited ....................................................................................... 179 CHAPTER 3. Ḥudūd Avoidance vs. Imposition amongst Early Jurists: Methodology and Doubt ....................................................................................................................... 189 I. Introduction ........................................................................................................................ 189 II. Early Shāfiʿīs ........................................................................................................................ 192 A. Ḥudūd Definition, Commission, Imposition ............................................................. 196 1. Defining Criminal Elements ................................................................................. 197 2. Against Lenience ................................................................................................... 203 B. Ḥudūd Avoidance.......................................................................................................... 208 1. Mens Rea: Subjective Indicia ................................................................................. 208 2. Proving the Elements............................................................................................ 211 C. Early Shāfiʿī Shubha ...................................................................................................... 215 III. Early Ḥanafīs ....................................................................................................................... 218 A. Ḥudūd Imposition ......................................................................................................... 219 1. Mens rea: Objective Indicia ................................................................................... 219 2. Finality .................................................................................................................... 226 B. Ḥudūd Avoidance.......................................................................................................... 228 1. Defining Criminal Elements ................................................................................. 228 2. Primacy of Contracts ............................................................................................ 237

C. Early Ḥanafī Shubha ..................................................................................................... 240 IV. Early Mālikīs ........................................................................................................................ 244 A. Ḥudūd Imposition ......................................................................................................... 245 1. Mens Rea: Quasi-Objective Indicia and Shifting Burdens ................................. 245 2. Criminal Elements and Convention.................................................................... 249 B. Ḥudūd Avoidance.......................................................................................................... 251 1. Criminal Elements and Completion.................................................................... 251 2. Finding Shubha: The Judicial Role ....................................................................... 253 C. Early Mālikī Shubha...................................................................................................... 259 V. Conclusion ........................................................................................................................... 261

CHAPTER 4. The Expansion and Contraction of Doubt Jurisprudence: Substantive, Procedural, and Interpretive Shubha ........................................................................... 263 I. Introduction ........................................................................................................................ 263 II. Subjectivity and Mens Rea: Ḥanafī Shubha...................................................................... 264 A. Developing Ḥanafī Shubha .......................................................................................... 264 B. Developed Ḥanafī Shubha............................................................................................ 284 1. Mistake of law is an excuse—If Reasonable ....................................................... 285 2. Mistake of fact also is an excuse—if plausible .................................................. 287 3. Creating mistake through contract .................................................................... 290 C. Shubha as Subjectivity ................................................................................................. 291 III. Accommodation and Legal Pluralism: Mālikī and Shāfiʿī Shubha ............................... 291 A. Developing Mālikī and Shāfiʿī Shubha ....................................................................... 293 1. Mistake of law is an excuse for the layperson .................................................. 294 2. Mistake of fact also can be an excuse—regardless of intent........................... 298 B. Interpretive Ambiguity and Legal Pluralism ........................................................... 301 1. Legal Pluralism and Interpretive Ambiguity .................................................... 303 2. Mālikī Interpretive Shubha and the Fiction of Knowledge of the Law .......... 309 3. Shāfiʿī Interpretive Shubha: Reasonable Differences Only in the Dominant Legal Regime......................... 312 C. Shubha as Interpretive Difference ............................................................................. 316 IV. Fault Lines: Strict Liability & Moral Values ................................................................... 317 A. Consensus Cases of Strict Liability ............................................................................ 318 B. Against Contracting Ambiguity ................................................................................. 319 C. Moral Values as Limits on Ḥudūd Avoidance ........................................................... 319 V. Conclusion ........................................................................................................................... 320


.......................................................................................................................................... 415 3......... 372 IV........... 425 x    ................................................. 393 2.... 323 A................................................................ Ẓāhirī Doubt Jurisprudence .............. Interpretive Consistency: Social Status and Social Mores ................... 351 C.......... 375 2..................................... Introduction .............................. 361 2........................................... Expanded Ḥudūd Avoidance... Rejected Ḥudūd Avoidance ......................... Pragmatism..................... 373   CHAPTER 6..................................... The Ḥudūd Maxim and Presumptions of Law ...... 355 A............... 355 B.... Toward a Liberal Rationalism: Innocence on Rational Bases ............................................................. 377 3.................... Reading Traditions in Andalusia: Authentication ........................................................ Rationalism ........................................................ 322 II.. Shīʿī Duels over Theology and Interpretive Philosophies of Law: Textualism vs............. 364 3....................................... 322 I....... 323 B..... Rationalist Thrust: Presumed Innocence and Legality .. Conclusion ...................................................... 328 1........................................... Knowledge and Certainty: Burdens of Proof ....................................... 353 III................. 374 I.................... Akhbārīs) ......................................................................................... Shīʿī Debates: Rationalists vs...... Ḥanbalī Doubt Jurisprudence ..................................................CHAPTER 5........................................................................... 368 C............................. 374 II.................................... 398 3............................ Introduction ........... Traditionist Parry: Avoiding Possible Culpability and One Right Answer as Text ........................................................ 342 2....... Ambiguity between Law and Fact....... Traditionalists (Uṣūlīs vs.......... 387 B.......................................................................................................... A Textualist Theory of Ambiguity and the Principle of Precaution .. Toward a Balanced Rationalism: Innocence on Textualist and Rationalist Bases ................ Ḥanbalī Shubha ...................................................................................................................... 359 1...................................................... Interpretive Authority: Revelation and Reason ......... Ibn Ḥanbal: Faithful Agent of Mixed Traditions . Ẓāhirī Shubha .......................... 375 A.... 411 1................ The Battlefield: Theological-Legal Debates............. The Ḥudūd Maxim in Accord with Ḥanbalī Traditionism: Limited Ḥudūd Avoidance .. 375 1.. Developing Ẓāhirī Textualism. 344 3................................................. 393 1................................................................................. Ibn Bābawayh & Traditionist Foundations: Presumption of Innocence? . Contested Ḥudūd Avoidance ....... Traditionism vs...................................... Toward a Conservative Rationalism: Innocence on Textualist Bases .............. 413 2............................................... 405 C......................... Obligation and Prohibition ........................................ The Ḥudūd Maxim Questioned: Opponents and Reluctant Adherents.............. Ambiguity and Avoidance: One Right Answer as Text ................. Interpretive Process: Textual Canons and Constrained Discretion.....

....... 453 APPENDIX: Bibliographical Guide to Legal Maxims Literature ..................... 458 BIBLIOGRAPHY ................................. 447 III................................................................................... Defensive Theories of Innocence and Interpretive Discretion ............................................................................................ Rationalist Riposte: Reason after Revelation as the Right Answer ............................... Ambiguity and Ignorance: Due Diligence and Constraint ...................... 443 3. 431 1............... 483 xi    ..................................................................................D...... 433 2........................................... Conclusion: The Ḥudūd Maxim and the Innocence Presumption ..... Ambiguity and Resolution: The One Right Answer as Process ............ 451 CONCLUSION..........

The Concept of Law.” H. function. (Oxford: Oxford University Press. in law. or at least in investigating its causes and evaluating its effects. and doubt in Islamic law. Laws are “open-textured. prove indeterminate.”2 Accordingly. it is much too often elusive. “however smoothly they work over the great mass of ordinary cases. Hart used this term to refer to the indeterminacies that will inevitably arise in general rules. Interpretive Law and Literature: A Hermeneutic Reader (Evanston. jurists in many legal traditions appeal to canons of construction. Frederick Schauer. “An Essay on Constitutional Language. 1988): 133-154. Hart. and principles. It is about uncertainty. Legal maxims are succinctly stated principles that jurists use as key interpretive tools when                                                                   1 H. standards. which. this study is not about certainty.. will. eds. there can be great benefit in doubt.A. 125-28. “quixotic quests for certainty are likely to interfere with more fruitful quests for an intelligent understanding of the causes and management of our uncertainty. also known as legal maxims.L. maxims play a prominent role in the judicial interpretive process. 1994) [orig.1 Arguably. Especially in common law-like systems such as the American and Islamic legal traditions. 153. 2nd ed. published 1961]. ambiguity.” making doubt inevitable. 1    2 .A. As one philosopher of law remarked.L.” in Sanford Levinson and Steven Mailloux. and debates concerning legal maxims (qawāʿid fiqhiyya) in Islamic law through the lens of one legal maxim that became central in criminal law and that dealt directly with doubt (shubha). But where and how did such maxims arise? What role did they play in addressing major questions of law and society? On what basis do jurists assert the authority to use them? * * * This dissertation examines the history. at some point where their application is in question. In attempts to resolve the doubts that arise from the indeterminacies of text. IL: Northwestern University Press.INTRODUCTION   As comforting as certainty may be.

my work focuses on core maxims of criminal law that place certain limitations on the definition and imposition of criminal sanctions and—by extension— the reach of legitimate political authority. Moreover.g. which were distilled and collected in multiple treatises beginning in the 7th/13th centuries and continuing through the 10th/16th centuries. family law or ritual law. This is particularly true in criminal law. maxims express interpretive processes and juristic values of particular legal schools and—where shared—of dominant views in Islamic law. maxims allow jurists tremendous leeway in formulating new precedents and thereby constructing and subtly shaping the law. As statements of existing rules drawn from prior precedents. over which Muslim jurists assert near exclusive interpretive authority). penal law lies at the intersection of politics and law. because this area of law reflects value-laden rules of societal (or divine) condemnation for certain behaviors.applying texts and settled precedents to new cases.. Because criminal law straddles the political-legislative and juridical-interpretive divides in Islamic law. it provides a fruitful avenue for examining the operation of and rationales behind legal maxims in the two spheres. Accordingly. A saying that developed into the central maxim of Islamic criminal law requires judges to “avoid imposing criminal sanctions in cases of doubt or ambiguity” (idraʾū ʾl-ḥudūd biʾl-shubahāt): the “ḥudūd maxim. Studying the juristic usage of legal maxims can reveal much about a legal system’s interpretive processes and the values of the jurists employing them. As gap-filling measures to address situations for which there is no plain statement of law. unlike other areas of Islamic law (e. and which garnered resurgent interest in 2    .” My detailed study of this single maxim is illustrative of the genre of legal maxims.

Llewellyn. Debates: Questions of Institutional and Interpretive Authority Beginning with the debates. Oxford: Blackwell. ed. Such debates arose in famously colorful terms in the American legal context. Llewellyn redoubled his efforts in the 1950s. which is useful to review here because of how it resonates with analogous trends in Islamic law. “A Realistic Jurisprudence—The Next Step. “The Theory of Judicial Decision: Or How Judges Think. Edmundson (Malden. they are illegitimate because they rest on no textual basis for legalinterpretive authority. “American Legal Realism. the Scalian-style “new” textualism. Karl Llewellyn. and debates over legal maxims and doubt. MA. American legal realist extraordinaire.” Columbia Law Review 30 (1930): 431-44. See Karl N. led by the likes of Karl Llewellyn and Max Radin. Max Radin. Brian Leiter.the modern day. and moral values that motivated them to do so.3 once famously                                                                   3 Legal realism is the name given to the movement that attacked the “classic” understanding of the American legal process. which was not wholly unlike the traditional textualist theories of Islamic legal interpretation (or for that matter. societal. Legal realism gained steam in American debates about the nature of the legal interpretive process and the role of the courts during the 1920s and 30s. Specific emphasis is on criminal law and the role jurists play in constructing and defining both doubt (shubha) and their authority to resolve it. functions. together with the institutional.” in The Blackwell Guide to the Philosophy of Law and Legal Theory. Martin P. This narrow study serves as a means of addressing broader questions about the development and operation of legal maxims. Golding and William A. For a succinct overview of legal realism and the major interpretive philosophies in 19th– and 20th–century American law. as discussed below). It is in view of these concerns that this dissertation addresses issues relating to the history. Proponents of them have been challenged by jurists who do not believe that maxims aid in resolving doubt in the first place and that even if they did. 2005): 50-66.” American Bar Association Journal 11 (1925): 357-62. see. targeting legal maxims in particular through his famous tract his pitting canons against counter-canons (cited below). jurists who are maxims-proponents typically face severe criticisms for appealing to extratextual canons to fill gaps in the law left by the ambiguities and indeterminacies of text. called legal formalism or textualism. I. These canons are controversial because they have no specific textual pedigree. 3    .

A maxim of central concern (and. Antonin Scalia. 1997).” Wisconsin Law Review (1990): 1179. Geoffrey P. it turns out. Manning. A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press. “substantive maxims” that go beyond the text or express particular policy preferences—such as those urging judges to read statutes in light of an unstated statutory “purpose”—risk judicial lawmaking of the worst sort. 4    7 . “Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed..”6 Textualists chimed in too. Llewellyn’s critique transformed maxims from supposedly neutral principles that guided and constrained legal interpretation to “conclusory explanations appended after the fact to justify results reached on other grounds. “Pragmatics and the Maxims of Interpretation. e. For them. Rules or Canons.g. 5 6 Llewellyn. arising in both the American and Islamic legal contexts. Miller. 401-06. although they made exceptions for the more textbased “interpretive maxims” commonly called canons of construction.7 Realists and textualists differed about whether law was objective or even identifiable but they agreed in some sense that courts should apply the law. opprobrium) is the principle of criminal law that stands at the center of this study.4 He complained that for every maxim supporting one interpretation. there is a counter-maxim supporting the opposite view.” Vanderbilt Law Review 3 (1950): 395-406. 1180. Appendix. and substantive maxims were an easy way to circumvent it.attacked legal maxims for being wholly indeterminate. John F. And to prove it. The “rule of lenity” in American law stipulates that criminal                                                                   4 Karl N.” Columbia Law Review 101 (2001): 1-127. See. Llewellyn.5 The idea was that judges used maxims selectively to reach predetermined results. “Textualism and the Equity of the Statute. he mapped out a damning thrust-and-parry chart of contradictory maxims commonly used in the courts.

cf. many have called for the elimination of the lenity rule because it seems to exemplify the very arbitrariness to which Llewellyn objected in his attack against maxims. they contend. only because of its long-standing presence in the law. Wiltberger. The comparable Islamic law “ḥudūd maxim” also directs judges to avoid imposing fixed criminal punishments in cases of doubt or ambiguity. Zachary Price. Justice Antonin Scalia. “Lenity and Federal Common Law Crimes.11 The ḥudūd maxim too has garnered sharp opposition in the Islamic legal context.sanctions are to be avoided in cases of doubt or ambiguity. Philip M. 887 (arguing that lenity should be rehabilitated).” 390-96.” Harvard Civil Rights-Civil Liberties Law Review 29 (1994). “Lenity and Federal Common Law Crimes. its inconsistent application reflects the role of judges’ personal preferences rather than the rule of law.g. 197. 11 See Sarah Newland. 18 U. 511.S. 10 5    . “The Mercy of Scalia: Statutory Construction and the Rule of Lenity. and it does so in the sensitive area of criminal law—where the structural imperatives of these legal systems dictate that deference to the legislature should be most pronounced. Kahan.” Fordham Law Review 72 (2004): 885. the vocal 5th/11th-century Sunnī Andalusian jurist Ibn Ḥazm                                                                   8 See.. 9 See Scalia. “The Sentencing Rule of Lenity. Spector.” University of Toledo Law Review 33 (2002). so I suppose that it is validated by sheer antiquity. 512 (arguing for modification through limitation). In the American context. 345 (arguing for abolition altogether).”). Ibid.” Supreme Court Review (1994). Dan M. Interpretation.8 Textualists level similar attacks against substantive maxims. Like Llewellyn. The lenity rule. surprisingly. lenity is “as old as the common law itself.”10 In practice. is a convenient tool for judges to flout express legislative intent to punish crime. the lenity rule persists—with Justice Scalia.. as its greatest proponent. e. Kahan. For the Supreme Court’s self-identified arch-textualist. United States v. 43 (1820) (“The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. 35. 26-27.9 but reluctantly accept the lenity rule. akin to a person looking out over a crowd to pick out their friends). “The Rule of Lenity as a Rule of Structure. 25-26 (noting that judges’ use of maxims is extremely selective and selfserving.

runs roughshod over the foundational sources of law.: apparent or prima facie). 9:428. took a similar position. 6    . Muḥallā.. 1971). 2:229. ʿAbd al-Ghaffār Sulaymān al-Bandārī (Beirut: Dār al-Kutub al-ʿIlmiyya. al-Qanṭara: Revista de Estudio Árabes 28 (2007). announcing that God’s laws (ḥudūd) are not to be transgressed). the standard work is Ignaz Goldziher. including the very basic Islamic legal principle of divine legislative supremacy requiring that the law be obeyed. 11:153. the 11th/17th-century Shīʿī jurist of the textualist-traditionist school of Shīʿī law.13 Antiquity was no defense. Using a maxim of dubious provenance to avoid observing the clear obligation to punish criminal law violations. so named because its jurists insisted on relying on the apparent meaning of foundational texts.. and it easily resulted in disparate application of the law. Wolfgang Behn (Leiden: Brill. The Ẓāhirīs: Their Doctrine and Their History: A Contribution to the History of Islamic Theology. 456/1064). because it contravenes the clear sense of ḥudūd laws as mandatory fixed criminal sanctions for serious crimes and. Part I: 7-40. substantive                                                                   12 See Adam Sabra. Like Scalia. 1968). trans.had posited that for every maxim there is a counter maxim. see also Sabra.15 Muḥammad Amīn al-Astarābādī. “Ibn Ḥazm’s Literalism.14 Moreover. 9:428 (citing a Prophetic ḥadīth outlining the sacredness of core Islamic values like the preservation of life and honor.12 but unlike Scalia. Ibn Ḥazm was the last well-known leader of the Ẓāhirī school (lit. Part II: 307-48 (cataloging Ibn Ḥazm’s use of inference and other text-based interpretive strategies in his interpretive methodology). consequently. the intent of the Lawgiver that those laws not be transgressed. Ibn Ḥazm was a textualist who favored interpretive canons. and Qurʾān. see also ibid. “Ibn Ḥazm’s Literalism: A Critique of Islamic Legal Theory” (in two parts). 7:454-55. idem. he made no exceptions for the ḥudūd maxim. Die Ẓāhiriten (1884). it—like all substantive maxims—was a useful tool for anyone wishing to disregard the law. 13 See Ibn Ḥazm (d. See Ibn Ḥazm. 1988). 14 15 See idem. al-Iḥkām fī uṣūl al-aḥkām (Egypt: Dār al-Kutub al-ʿIlmiyya. trans. On the history of the Ẓāhirī school and its methodology. 9:428 (adding that there is no difference between ḥudūd laws and any other legal arena). he complained that the ḥudūd maxim is particularly egregious. ed. II:307. juristic applications of the maxim were inconsistent and incoherent. For him.” I:7-11 & notes 2-14 (and sources cited therein). al-Muḥallā biʾl-āthār. he said. In fact. which jurists could use to flout the law. Muḥallā.

the legal process always involves a measure of interpretation. but unlike Scalia. it was so not out of reason’s dictates. idem. al-Fuṣūl al-muhimma. any maxim had to have a textual basis. 28:48. other constraining interpretive principles took priority over the malleable maxim and severely curtailed its scope. 34. for Astarābādī. al-Fawāʾid al-Madaniyya (n. barring jurists from exercising discretion and thereby reading their own preferences into the law. Both camps are intent on curtailing judicial discretion in deference to legislative supremacy presented in the text. but because it appeared in the texts of the law’s canonical sources. whether involving “the law” as embodied                                                                   16 Muḥammad Amīn al-Astarābādī. ed. which he called rational presumptions (uṣūl). [198-]). 106. Wasāʾil al-Shīʿa.16 It would be fair to conclude that he would have been held the position that. 7    . were a means to subordinate revelation to reason rather than vice-versa. but the sole.: Dār al-Nashr li-Ahl al-Bayt. [198-?].17 Moreover. But on both sides. To be valid and to place revelation in its proper place as not only the primary. if the ḥudūd maxim was valid. no.179 (quoting the ḥudūd maxim as a ḥadīth from Ibn Bābawayh’s Faqīh). we find that the realist and textualist approaches vary considerably and that the impetuses for the maxim in the American and Islamic contexts do as well. 388 (referencing the ḥudūd maxim as a prophetic ḥadīth). 3rd ed. especially of the substantive kind. they held that its textual basis did not translate into room for wide application of the maxim. (Qum: Maktabat Baṣīratī.p. Like Scalia. 1383-1389/[1963 or 1964–1969]).maxims. 17 See al-Ḥurr al-ʿĀmilī. critics find common cause in their attacks on maxims. It is of course a legal construct to speak of such deference given text’s indeterminacy. cf. Shīʿī textualists found that antiquity justified the maxim (it seems to have always been there as a canonical text). When placed side-by-side. source of law. ʿAbd al-Raḥīm al-Rabbānī al-Shīrāzī (Tehran: al-Maktaba al-Islāmiyya.

Rather. it is about which interpretive philosophies Muslim jurists rely on in their claims of textual fidelity and whether their arguments resonate in their broader legal and societal texts or the facts to which those laws are supposed to apply. to justify the positions they have assumed vis-à-vis legal maxims. a theory of interpretation of legal texts alone will fail to provide determinate answers. “Facing Facts in Legal Interpretation. Legal decisions have authority to the extent that the stories judges tell resonate both in the world from which the disputes and conflicts come and in the specialized world of legal discourse. and why. 60. (“[L]egal authority is not simply internal to legal culture.” Kim Lane Scheppele. History has demonstrated that simply identifying opposing legal maxims in either realm will not explain the enduring judicial usage of them.” Representations 30 (1990): 42-77.                                                                   18 That is to say that “law does not live by doctrine alone. We are interested not only in establishing that there is a conflict over maxims.”). but … pertains to the relationship between legal culture and the culture of the world into which it is an intervention.19 Despite the attacks. but also in understanding why. we ask what rationales and presuppositions jurists draw on. these questions are best approached by examining larger questions of social and legal history as well as interpretive philosophy surrounding the use of legal maxims.18 Insistence on judicial deference then is not about any actual purging of discretion and whether interpretation takes place no matter how purportedly clear or doubtful the text. Focusing on the juristic role in these affairs. Instead. 8    19 . ibid. The task for scholars seeking to understand the phenomenon and the persistence remains in both realms. Cf. … [For] as long as judges … have the flexibility to characterize the facts of cases. nor will it reveal the true locus of the conflict between those who doggedly invoke maxims and those who vigilantly attack them. so the ḥudūd maxim persists in Islamic law. Legal rules and legal facts are mutually constituting. just as lenity carries on in American law.

is the first                                                                   20 There is much discussion and debate about the appropriate periodization of various phases in Islamic legal history. which are elaborated and differentiated in the various schools of law beginning in this period at the point just after certain legal maxims—as in 9    . History: The Rise and Pre-History of Legal Maxims Literature The professionalization of distinct interpretive schools of Islamic law (madhhabs) in the 5th/11th century saw the rise of the earliest treatises on legal maxims. 462/1069). Appealing to certain institutional arguments with reliance on particular theological presuppositions. Muslim jurists constructed competing theories of law to address questions about the nature and scope of interpretive authority in order to resolve or preempt doubt. As I seek to demonstrate here.20 A Shāfiʿī judge in Baghdad. Rather. The aim is to seek clues to the factors driving positions on the validity and utility of the ḥudūd maxim as a way of tackling the same questions involved in the wider realm of maxims. These phenomena are illustrated in this dissertation in recounting juristic discussions about the meaning and contours of doubt (shubha). the rise of and debate over legal maxims stem from contextual factors of law and society together with moral anxieties facing jurists who operated in what they believed to be a system of divine law. with ḥadīth as central). and had begun to develop and articulate the theories and contours of the schools to which they belonged.It is with these concerns in mind that this study focuses on the juristic debates that reveal core presumptions underlying the legal interpretative process with respect to the ḥudūd maxim. II. by and large had settled on shared theological principles that undergirded their orientations to law. they embodied these positions in a series of pithy statements called legal maxims and collected them in treatises that offer a window onto the values and interpretive principles that stand at the core of Islamic jurisprudence. Eventually. I designate the 5th/11th century as the “professional” period because it is by this time that jurists had grouped themselves into discrete associations and coalesced around distinct substantive doctrines and interpretive methodologies of law (which focused to a large degree on textual authority. Qāḍī Ḥusayn al-Marwazī (d. the conflict often has little to do with anything inherently contradictory in the maxims themselves.

see Hossein Modarressi. (Beirut: Dār al-ʿIlm liʾl-Malāyyīn. Ṣubḥī Maḥmaṣānī. 1980 [1st ed. (2) Custom has legal consideration: al-ʿāda muḥakkima. the principle stating that that “actions are by to be evaluated according to the aims for which they were executed.. 10    22 .known jurist to record the handful of maxims that came to be identified as the “universal maxims” of Islamic law (qawāʿid fiqhiyya [kulliyya]). An Introduction to Shīʿī Law: A Bibliographical Study (London: Ithaca Press. most scholars of legal maxims recording the history of the genre identify his work as the first to list four of these universal maxims. Ibn Nujaym. Naḍd al-Qawāʿid al-fiqhiyya. indeed. (4) Certainty is not superseded by doubt: al-yaqīn lā yazūlu biʾl-shakk. The Philosophy of Jurisprudence in Islam (Leiden: Brill. 911/1505). 1403/1982-3). For other divisions. 35. 299. 7. 1:133. 1:17-19. to reflect the very spirit of the law: (1) Harm is to be removed: al-ḍarar yuzāl. Ḥamīd (Mecca: Jāmiʿat Umm al-Qurā. 1998). ed. 1983). al-Ashbāh waʾl-naẓāʾir. 201. (Qum: Maktabat Āyat Allāh al-ʿUẓmā al-Marʿashī. they appealed to another set of                                                                                                                                                                                                 the ḥudūd maxim examined here—became prophetic ḥadīths. Nāṣir Makārim Shīrāzī. Aḥmad b.g.. 1961)). which they took to apply to all aspects of the law and. not intention in law. Abū ʿAbd Allāh al-Maqqarī (d. 758/1357). For the standard work in the Shīʿī context. ed. 1:26-27 (five categories). Suyūṭī. 325-76 (English trans. al-Qawāʿid al-fiqhiyya (Qum: Madrasat al-Imām ʿAlī b. 337. Qawāʿid. Abī̄ Ṭālib. 1984). e. 1416). which was not heavily or widely recognized in Islamic legal precepts (especially those outside of the Shāfiʿī ritual law context).22 These maxims read more like broad statements of legal theory and meta-Islamic values than interpretive principles useful for the judge or jurist facing a real legal problem. 198-). ʿAbd Allāh b. (3) Hardship brings about facilitation: al-mashaqqa tajlib al-taysīr.21 Subsequent jurists— Sunnī and Shīʿī alike—settled on and unanimously agreed upon five universal maxims. 21 Though his work is no longer extant. 90-114. Jalāl al-Dīn al-Suyūṭī (d. For that. Miqdād al-Suyūrī. see. Jurists found it difficult to apply the universal maxims to resolve doubt or to determine the outcomes of concrete situations. 5th ed.g. Ashbāh. for example. The fifth was belated likely because it came from a ḥadīth that referred to spiritual reward (innamā ʾl-aʿmāl biʾl-niyyāt). Falsafat al-tashrīʿ fī ʾl-Islam.” See. Maʿhad al-Buḥūth al-ʿIlmiyya wa-Iḥyāʾ al-Turāth al-Islāmī. e. see Wael Hallaq. 1946]). ed. which focused more on objective indicants of intent rather than intent itself. ʿAbd al-Laṭīf al-Kūhkamarī et al. al-Ashbāh waʾl-naẓāʾir. 2005). Muḥammad al-Muʿtaṣim bi-ʾllāh al-Baghdādī (Beirut: Dār al-Kitāb al-ʿArabī. and (5) Acts are to be evaluated according to the aims according to which they are executed: al-umūr bi-maqāṣidihā. to which a fifth was added—namely. For succinct studies presenting and describing major periods of Islamic law in the Sunnī context. ed. Maqqarī. al-Qawāʿid. Muḥammad Muṭīʿ al-Ḥāfiẓ (Damascus: Dār al-Fikr. 212. See. Farhat Ziadeh. The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press.

This latter group comprises the principles generally referred to as “legal maxims” without qualification (qawāʿid fiqhiyya) and—for parity’s sake—may also be called substantive canons. plus a third that folded in some of the interpretive rules from jurisprudentialinterpretive canons.subsidiary. pl. a maxim stating that “the child belongs to the marriage bed” is a presumption used to determine paternity when there is no other textual or rational way of resolving doubts about who fathered a child. Legal scholars categorize these maxims in various ways. uṣūl). The judge need not deliberate 11    . The first category of substantive maxims (qawāʿid fiqhiyya) actually encompasses both rules of thumb that have a narrow range of application as well as interpretive principles with wide application over certain substantive areas of law. A common strategy is to divide maxims between textual principles of interpretation drawn from the field of jurisprudence and accordingly called interpretive canons (qawāʿid uṣūliyya). and principles more closely related to the doctrinal substance of the law (fiqh). which are the primary subject of this study. which discuss how laws relate to the sources and govern textual and linguistic principles of interpretation. pl. Muslim jurists discussed this realm of general legal maxims in terms of several types that fall into two main categories covering substantive and procedural questions of law. more particular substantive legal maxims (qawāʿid fiqhiyya [juzʾiyya]). ḍawābiṭ. and in early Islamic law aṣl. For example. Jurists typically refer to the former as presumptions—expressions of settled doctrines relating to particular areas of law (ḍābiṭ. Grouped under the rubric of legal maxims are the five universal maxims together with more “local” ones that break down into further categories relating to particular aspects of law.

The table below summarizes the major types of maxims that arise in Islamic law. The category—not recognized as an independent category per se by medieval jurists— can be called “interpretive-substantive maxims. qawāʿid.. equitable principles canons] such as istiḥsān & istiṣlāḥ] [Shīʿī law: uṣūl ʿamaliyya] Substantive legal maxims: qawāʿid fiqhiyya Interpretation/derivation Application specific maxims. whenever he can ascertain or suppose the “fact” of a marital relationship. the rule applies only to family law (albeit with implications for criminal. and other areas of law). as discussed below. presumptions: qawāʿid fiqhiyya. juzʾiyya. though interpretive principles from the left side sometimes arise on the right.” of which the ḥudūd maxim is a good example. It requires jurist to use interpretive principles in deliberating about principles of substantive law like the rules of narrow construction. reference canons] e. the rule seems to have been motivated and justified by societal values on preserving lineage and community relations—related to but directly extending from the motivating factors for applying the ḥudūd maxim itself.g. he designates paternity on its basis.about specific aspects of the law to apply the rule. Types of Islamic Legal Maxims Interpretive legal maxims: qawāʿid uṣūliyya Text-based Extra-textual interpretive presumptions: [textual [source[Sunnī law: uṣūl & other & critical interpretive mechanisms. judges used this “paternity maxim” to avoid ḥudūd punishments for zinā by creating the legal fiction that that apparently illicit sexual relations occurred within a valid marital relationship.23 In that sense. 12    . In addition. uṣūl [interpretivesubstantive maxims: qawāʿid fiqhiyyauṣūliyya] procedural & evidentiary maxims: qawāʿid qaḍāʾiyya The ḥudūd maxim is an example of the latter two sub-categories—interpretive principles governing certain substantive areas of law as well as procedural and                                                                   23 Incidentally. and this is typical of the narrow scope of these presumptions. such presumptions are self-executing. The legal maxims with which we are concerned mostly fall on the right side of the divide. inheritance. ḍawābiṭ.

the sufficiency of the evidence to establish a crime. It is different from the other more narrow presumptions in that it is not self-executing given certain inputs. Instead. and popular sayings are related to maxims but distinct from them in their technical sense as summarized above and elaborated on by other scholars of legal maxims. which covers the laws of evidence and judicial procedure.24 This maxim covers the whole ambit of criminal law and interpretation. etc.evidentiary questions. who include under that designation takhrīj al-uṣūl ʿalā ʾl-furūʿ and uṣūl (presumptions.” but it is important to note that much more than legal maxims proper are often conflated with that label. Whenever there was doubt in any of these areas or                                                                   24 Additional tools for legal interpretation. they also explain the diversity of opinions and dissent from jurists who disagreed about whether and when to apply the ḥudūd maxim. ashbāh waʾl-naẓāʾir (discussions of similar cases). furūq (statements identifying and distinguishing similar cases). it allows them to exercise a wide range of discretion in determining what constitutes doubt and when that doubt requires avoidance of ḥudūd crimes. and the requisite burden of proof to secure a conviction in assessing and resolving doubt. hortatory statements of propriety. It also raises questions about the concept of doubt (shubha) and the rationales justifying stingy readings whenever a certain level of doubt was in play. in calling on jurists to interpret ambiguous criminal laws narrowly. these additional statements are sometimes confused with or referred to by the designation of “maxim. “adjudicatory maxims”). These rationales are important because they typically guide and limit application of the rule. It requires jurists to assess such factual matters as criminal intent. The second category is procedural maxims (sometimes called qawāʿid qaḍāʾiyya— literally.” even by scholars of maxims. The ḥudūd maxim is an example of a principle from this category too. often noting specificities of one school in contradistinction from others). It is beyond the scope of this project to detail the meaning of each and distinguish which deserves to be counted as a “maxim. 13    . In the primary sources.

25 The ḥudūd maxim offers a particularly valuable lens for looking into the larger realm of legal maxims because it is cross-cutting in several directions. (St. Philip Frickey. Eskridge Jr. That is. the notion of judicial subservience had special resonance with Muslim jurists anxious about submitting to God and following the moral imperatives outlined in foundational legal texts—the Qurʾān and Sunna. theological orientations informed juristic determinations about the scope of authority and human discretion to operate in the legal-interpretive realm. the maxim is about interpretation. jurists used the ḥudūd maxim to determine how to resolve doubt. The maxim brings into play matters of theology too.others that involved issues of criminal culpability. and reference canons. As such. it counts as a legal maxim that has both substantive and procedural aspects (qawāʿid fiqhiyya and qawāʿid qaḍāʾiyya). Jurisprudentially. 818-19. see William N. it drove interpretive philosophies of law. and Elizabeth Garrett. Legislation: Statutes and the Creation of Public Policy. In a legal system that posited a theory of divine legislative supremacy.. and a coherent legal system required some means of filling the gaps to regulate that                                                                   25 For an analogous discussion and definitions of American legal maxims divided into categories of substantive. textual. It often invokes the use of maxims from the realm of interpretive canons (qawāʿid uṣūliyya) too. 14    . MN: West. Paul. 3rd ed. 2001). Theology was worldview. Taken on the whole. as matters of interpretation in Islamic law implicitly entail or rest on certain theological suppositions. as it requires jurists to sometimes assess the textual imperatives in their deliberations about the existence of doubt in the very definitions of the criminal law that are supposed to be rooted in the foundational texts. But the texts left tremendous leeway for the exercise of discretion.

Jurisprudentially. it is to assert that we are able to better understand how legal disputes crystallized by examining the maxim. which tend to repeat the name of the maxim. because it was a means of moving from theory to practice. jurists applied the                                                                   26 There is no specific designation for the maxim in medieval works. Rather. who had the legitimacy and competence to do so? Theologically. who also claimed authority to regulate violence. Their usage of these maxims was extremely important to the whole edifice of Islamic law. The main questions at stake were the following. The original sense of ḥudūd did not refer to fixed criminal laws. As for substantive law (fiqh). were judges to presume a state of innocence or non-liability when it came to assessing knowledge of the law and criminal liability? The ḥudūd maxim served almost as a bellwether for how Muslim jurists approached these questions. But the maxim goes beyond strictly ḥudūd contexts to other areas of criminal law. the ḥudūd maxim came to apply expansively to doubts concerning all types of crimes and punishments. what was the scope of human discretion to interpret the law? Institutionally.discretion on principled and predictable bases. (There were certainly other factors at play.26 As we will see.) Jurists’ internal discussions revealed attempts to systematize the law by using the maxim as a guiding principle that took on twists and turns as they debated its contours and as it expanded and contracted. This was the task to which jurists employed legal maxims. though by the maxim emerged 15    . I have labeled it the “ḥudūd maxim” for its mention of ḥudūd and the centrality of that formulation in juristic discussions of ḥudūd crimes and punishments. Those discussions had external purposes and revealed concerns relating to political authorities. and this discussion is not to claim that the ḥudūd maxim determined it all.

                                                                                                                                                                                                in the first few decades of Islam’s rule. The common name used in modern Islamic legal maxims literature is the “avoidance canon (qāʿidat al-darʾ). and it extended to laws of retaliation. * For a brief survey of Islamic criminal law. acts of disputed ḥadd status. as such. the maxim showed up just as prominently. In other words. it no doubt did. and it speaks to issues of law and society that involve questions of status. It involves questions of theology. crime.” I do not use this phrase because it is not descriptive of the ḥudūd context to which the maxim applies. and debates concerning legal maxims in late antique and medieval Islamic law and society. the nature and content of those laws had not settled. 16    .* Finally. the ḥudūd maxim takes on shades of all categories of maxims: interpretive. rather than focus on the point at which legal maxims emerged as a genre of independent literature in the late medieval Islamic period (especially the 7th/13th through 10th/16th centuries).maxim to doubts involving retaliation for murder and personal injury (qiṣāṣ) and discretionary punishments (taʿzīr) as well. III. substantive. The interest here is not in the intellectual-historical question of how and why maxims arose in this later period. this dissertation offers a “pre-history” of the field. in the courtroom. and procedural. Yet. it relates to institutional relations between jurists and state. and discretionary punishments. but rather in the circumstances and doctrines leading up to and informing or defining that rise. and the authority to accommodate or regulate either. Function: Concepts of Doubt and Assertions of Authority As for the specific areas of investigation. the aim is to follow the trajectory of the ḥudūd maxim in the early period until the rise of legal maxims literature as a way of examining the history. As the maxim helped define the legal-doctrinal contours of the substantive law. In sum. the ḥudūd maxim was not restricted to what later became the short list of ḥudūd crimes. see the “Note on Islamic Criminal Law” below. it also molded Islamic criminal procedure. function.

The next two chapters examine the complex and varied meaning that jurists built up around doubt as a legal doctrine. The maxim was only gradually folded into the normative legal literature after jurists seeking to clarify and systematize the law had laid out the elements of criminal law and procedure based on existing texts. Philosophies 17    . precedent-setting force. and society from the earliest period. The chapter on Shīʿī regard for the legal maxim will use these debates between traditionist and rationalist jurists to highlight how differences in theological commitments resulted in radically different interpretive philosophies of law that impacted the function and scope of legal maxims. These studies aim to develop a panoramic view of the ḥudūd maxim—its development. and socio-political logic.The first two chapters cover themes in ḥadīth. The early concept of doubt from the first three centuries was limited and played a role mostly in the courtroom on case-by-case bases typically arising from evidentiary concerns. Though the ḥudūd maxim was accepted by the majority of Islam’s multiple schools of law— Sunnī and Shīʿī alike—the juristic theories about the type of doubt that did and did not trigger ḥudūd avoidance reflected the methodologies and value commitments particular to each legal school. that with the professionalization of the legal schools in the 4th/10th and 5th/11th centuries. law. The final two chapters will examine shades of opposition to the maxim. We will see. however. jurists developed a robust theory of ambiguity. and the more strict camps firmly opposed it. Strictly textualist and traditionalist Sunnīs (Ḥanbalīs and Ẓāhirīs) together with their Shīʿī counterparts (Akhbārīs) were not at all enthusiastic about the ḥudūd maxim. stemming from Prophetic times through the third century of Islamic legal history.

141-61.” EI2-Supplement (Online Edition: Brill. For a translation of a Persian article providing an overview of legal maxims in Shīʿī law. history. 1 (1995): 89-107. The approach is considerably interdisciplinary. art. applying insights from law and studies of legal maxims and jurisprudence in American law to themes and methodologies of area studies. 1 (2006): 77-101. * * * With these considerations in mind.. “Ḳawāʿid Fiḳhiyya. there has been an explosion of works on legal maxims in recent decades. 18    . ed. 2008).27 In Arabic and other Near Eastern languages. 2008). there have been no detailed studies of the field and only a handful of useful articles in recent years providing short overviews and raising preliminary questions about the history of legal maxims mainly in Sunnī law and mainly by two scholars. this dissertation makes interventions in fields of Islamic legal history and comparative law through insights offered in a broadly comparative framework. see also Wolfhart Heinrichs. “Legal Maxims and Other Genres of Literature in Islamic Jurisprudence. Like the classical treatises of legal maxims.” in Sharīʿah Law: An Introduction (Oxford: Oneworld. and Islamic law. seeing the exercise of reason as a threat to the strong principles of divine legislative supremacy. they drove opposition to the ḥudūd maxim and. see Muṣṭafā Muḥaqqiq Dāmād. “Legal Maxims. To date. as demonstrated in an appendix.” in Bernard Weiss. Contemporary English-language scholarship on Islamic legal maxims is extremely sparse.” Arab Law Quarterly 20.that sought to restrict judicial discretion through reliance on text conceived of an extremely narrow scope for reason vis-à-vis revelation. discuss legal bases for                                                                   27 See Mohammad Hashim Kamali. any other substantive legal maxim—causing their rationalist counterparts to redouble efforts to defend it. by extension. “The Codification of Islamic Juridical Principles. it diverges sharply from many studies in Islamic law and the few studies of legal maxims. As such. idem.” Ḥikmat 1. but they largely take a traditional approach. 2002) (and sources listed therein). many of these collections identify core maxims. “Qawāʿid as a Genre of Legal Literature. idem. Accordingly. Studies in Islamic Legal Theory (Leiden: Brill.

a recent article that takes a law and society approach is that of Maribel Fierro. Athar al-shubahāt fī darʾ al-ḥudūd (Riyadh: Maktabat alTawba. 15-16 (1375): 25-30. al-Shubahāt al-musqiṭa liʾl-ḥudūd aw al-ẓurūf al-mukhaffifa waʾl-aʿdhār al-musqiṭa liʾl-ʿuqūbāt al-mutarattiba ʿalā jaraʾim al-ḥudūd: dirāsa fiqhiyya muqārina ʿalā ʾl-madhāhib al-Sunniyya (Beirut: Dār Ibn Ḥazm. Zaydī. with some reference to minority schools where significant (including the Ẓāhirī.’” Majalla-i qaḍāʾī va-ḥuqūqī-yi dādgustarī-yi Jumhūrī-yi Islāmī-yi Īrān 5. 2003). Saʿīd b.’” Faṣlnāma-i dīdgāhhā-yi ḥuqūqī 8 (1365): 11-36. 1375/[1997]). and provide some examples of application in fiqh works in particular or across various schools of law. Mūsawī Bujnūrdī. and Ismāʿīlī traditions). “Barrasī va taḥlīl-i fiqhī va ḥuqūqī-yi qāʿida-i ‘tudraʾ al-ḥudūd biʾl-shubahāt.’” Dīdgāhhā-yi ḥuqūqī 5-6 (1376): 19-56. Exceptionally. and fatwā collections—and add consideration of legal maxims discussions in both those early materials and in later independent collections of maxims. In an attempt to reconstruct the varied aspects of the history and concepts of Islamic legal maxims generally through the ḥudūd maxim particularly. legal treatises. Muḥammad Ḥasan al-Rabbānī. “Dū qāʿida-i fiqhī: qāʿida-i ‘tudraʾ al-ḥudūd biʾl-shubahāt. I have omitted reference to the Ibāḍī school. Some studies have focused on individual maxims. Qāʿidat al-darʾ (Qum: Muʾassasat al-Nashr al-Islāmī alTābiʿa li-Jāmiʿat al-Mudarrisīn bi-Qum al-Musharrafa. 2-3 (2007): 208-38. “Āshināʾī bā qāʿida-i ‘al-ḥudūd tudraʾ biʾl-shubahāt. 1998). The articles include Muḥammad Bahrāmī. including a few on the ḥudūd maxim itself. The monographs include Saʿīd Manṣūrī.28 But these works differ from the present study because they generally detail a chronology of the major maxims literature and explain the concepts without addressing surrounding issues in intellectual and social history.” Hawwa 5. ʿAqīla Ḥusayn. Muḥammad Muḥammadī Gīlānī. I combine                                                                   28 I am aware of four articles and four monographs. Her theories about the ḥudūd maxim and what they reflect about legal maxims generally are discussed in the text of the dissertation. I draw on the earliest extant sources typically used for Islamic law (both Sunnī and Shīʿī)29—ḥadīth studies. Misfir al-Daghghār al-Wādiʿī. For space considerations. jurisprudential works. “Idraʾū al-ḥudūd bi-l-shubuhāt: When Lawful Violence Meets Doubt.each. Qavāʿid-i fiqh: bakhsh-i jazāʾī—fiqh-i taṭbīqī-yi qāʿida-yi darʾ (Tehran: Tadbīr. My work emphasizes the interaction between legal thought and socio-political changes as well as how philosophy of law reflected diverse theological and societal values of Muslim jurists in the medieval period. 19    29 . I focus on the major Sunnī and Shīʿī schools. this work draws on a wide range of sources read critically with an eye to uncovering the role of legal maxims in both law and society. 1428).

the remainder highlights the intellectual turns taken by the maxim in Islamic law’s “professional” period. From these sources. The result is a composite contribution intended to address existing gaps in studies of Islamic law relevant to this field and to comparative contexts. further detailing the mechanisms of interpretive processes. Relevant scholarly literature typically adopts a formalistic approach to Islamic law that encompasses two fields— Islamic legal theory (uṣūl al-fiqh) and positive law (fiqh)—without accounting for the significant use of legal maxims in moving from the former to the latter. I also identify and analyze the legal cases—as jurists from the first three centuries understood them—central to creating a “jurisprudence of doubt” related to the ḥudūd maxim. heresiographal works. my work first demonstrates the centrality of legal maxims to judicial deliberations in Islamic law. this study adds a third prong to the bipartite model of Islamic law. Legal maxims. especially as seen in the “jurisprudence of doubt. and theological works. literary sources. 20    . historical chronicles.these sources with material useful for placing legal themes in the surrounding contexts of social and intellectual history—biographical dictionaries. stretching from the 10th through 16th centuries. This first half of the dissertation focuses on both social and intellectual historical themes. By detailing how jurists make this move in criminal law. initial emphasis is on the early (preprofessional) period of Islamic law. As far as these gaps are concerned. when the maxims first arose and developed most drastically. the 7th through 9th centuries.” represent the flexibility and realm of guided discretion through which the law expands and contracts to accommodate novel cases and to adjust to new circumstances. While the period covered spans centuries.

and possibly for the future of Islamic legal thought. this study demonstrates how. I end with a final section that will offer tools to help place the ḥudūd maxim in the larger context of legal maxims and to facilitate future research in the field. there are no detailed studies of maxims literature and precious few resources available. Finally.Second and relatedly. this list will provide a starting point for future studies in the field. Currently. there are no such catalogs of this literature that display the wideranging scope of the field. for ongoing studies of Islamic law. 21    . This. I present an alternative model to a common view of Muslim jurists as formalist-textualists who faithfully interpreted “the” law. they constructed the law through the use and expansion of legal maxims. and the rule of law. I aim to show that these maxims and the presentation of them in the legal maxims treatises represent matured principles of Islamic law and moral values after long periods of deliberation and change as jurists and political officials negotiated shared but slender lines bordering issues of authority. An appended bibliography of legal maxims will provide a chance for the reader to see how and where the ḥudūd maxim fit into the historical development of legal maxims literature. In English. discretion. in many ways. As an end-point to the dissertation. despite the increasing interest in maxims resulting from growing recognition of their importance for Islamic law and history.

1982). Ibrāhīm b. 1968). and Ramsīs Behnām. just as the outer borders (ḥudūd) of a house prevent trespass. as I aim to introduce the relevant concepts in-text as they arise in the discussions). the standard classical references with some of the best treatments include ʿAbd al-Qādir ʿAwda. 22  32   .p. the theory goes. the distinctions drawn between ḥudūd and other criminal laws..31 According to Islamic legal theory. Abū ʾl-Ḥasan al-Māwardī. the Qurʾān and the Sunna. ed. and doorkeepers (ḥaddād) can prevent exit and entry). this dissertation necessarily examines issues of Islamic criminal law that require close familiarity with the substance and procedure of that law.. Islamic Criminal Justice System (London. The following discussion presents a brief primer on the major types of crimes. Cherif Bassiouni. 1995). 1:100-01 (explaining that the fixed criminal laws are called ḥudūd because the predefined acts and predetermined [maḥdūd] sanctions prevent or deter people from committing specified crimes. and the rationales on which jurists appealed to explain and justify the relevant rules of fiqh. Moreover. these crimes are specified and the punishments fixed by the Lawgiver in the foundational sources of law.32 In other words. For excellent English language resources. al-Tashrīʿ al-jināʾī al-Islāmī (Beirut: Dār al-Kitāb al-ʿArabī. 1968). Ibid. namely. a short overview of its main contours will be helpful to the reader (though not essential.. 1:101 (citations omitted). Kitāb al-ḥudūd min al-Ḥāwī al-kabīr. New York: Oceana Publications.30 The term ḥudūd refers to both the major crimes and their associated punishments in Islamic criminal law. ed.*A Note on Islamic Criminal Law In focusing on the ḥudūd maxim as a model interpretive tool. Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press. ʿAlī Ṣanduqjī ([Beirut]: n. only the Lawgiver can define the crime and determine the associated punishment. al-Naẓariyya al-ʿāmma liʾl-qānūn al-jināʾī (Alexandria: Munshaʾāt alMaʿārif. 31 See.g. so “it is impermissible for anyone to exceed or decrease” either. cf.. 2005). steel (ḥadīd) is unyielding metal. e. God is the supreme                                                                   30 For fuller treatments of Islamic criminal law and procedure. While this dissertation does not attempt to offer any detailed overview of Islamic criminal law. see now Rudolph Peters.

” The Muslim World 91. 23    . they fall outside of their own technical definition of                                                                   33 For a discussion with this rendering of the term. the more detailed Sunna was known through a series of scattered ḥadīth texts of often dubious authenticity. and intoxication (shurb al-khamr). Case in point: Muslim jurists did not agree on what counts as ḥudūd laws. Rebellion certainly must be regarded as a separate category because jurists view it as a category of political resistance. the Qurʾān bans highway robbery or acts of “domestic terrorism.legislator in Islamic law. theft (sariqa). The Qurʾān was a static text but sparse on details of law. And they typically treat rebellion and highway robbery together (ḥirāba or qaṭʿ al-ṭarīq) under the same general rubric of criminal law. slanderous accusations of sexual impropriety). Jurists found it difficult to determine the legitimate application or scope of interpretation for ḥudūd because of the often indeterminate nature of Islamic legal texts in both form and substance. Rather. defamation (qadhf: specifically. expressing His will through scripture and prophetic practice. “Domestic Terrorism in the Islamic Legal Tradition. The jurists do agree that Islamic law specifies at least four ḥudūd crimes: illicit sexual relations (zinā). which is not itself banned. The absence of a single code or document clearly detailing the law always presented questions to jurists’ initial inquiry as to just what the law was. see Sherman Jackson.”33 There is often a question as to the line dividing terrorists from legitimate rebels. 3 & 4 (2001): 293-310. the matter was less clear-cut in practice. though juristic treatments of these two categories were grouped together. While in theory ḥudūd laws came from God and humans were barred from making or altering these laws. Most also treat apostasy (ridda) as such a crime—though there is no (this-worldly) Qurʾānically specified punishment for it. Jurists are mere faithful agents charged with simply interpreting and applying the law.

oh people of understanding. 2:178-79 (“[T]here is life for you in qiṣāṣ. which have been likened to tort law.35 The short list of four or five crimes expanded and contracted. which Islamic rules regulate and administer at the request of the victim or the victim’s family. 38-53 (“The origins of this part of the law go back to the pre-Islamic custom of feuding.” Bulletin of the School of Oriental and African Studies 13 (1951): 811.fixed crimes and fixed punishments.D. This may be surprising to the reader familiar with modern laws of murder as the quintessential crime. this institution of revenge was drastically modified.”). “Homicide in Islamic Law. With the advent of Islam. The sources specify alternative punishments for convictions. 35 For a discussion drawing the comparison between talion and tort in the Islamic law context.”). see Qurʾān. 5:45 (permitting retaliation for personal injury but encouraging financial compensation in its stead: “Whoever forgoes [physical retaliation in the way of charity] it shall be expiation for that person. but it involves some degree of discretion on the part of the victim’s family to pardon the offender and accept a set amount of financial compensation instead. These feuds would cease if the victim’s family would accept compensation. as the criminal elements and scope of the laws often depended on the constructions that jurists gave                                                                   34 See generally Khaled Abou El Fadl. so that perhaps you might learn God-consciousness [also: ‘restraint’].34 By contrast. 2005). For the Qurʾānic regulations. 24    . But the medieval Islamic conception comes out of explicit Qurʾānic regulations of existing practices and corresponds to medieval laws of talion (for murder and other personal injury) generally. See Rudolph Peters. In Arabic. including compensatory rules for accidental homicide). Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press 2001).N. This often resulted in feuds that could last for generations.”). to be paid collectively by all members of the tribe. State regulation replaced and attempted to ameliorate pre-Islamic practices of private administration that often fueled ongoing tribal wars. the laws governing murder and personal injury are qiṣāṣ. Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press. which allowed revenge for killing and bodily harm on all members of the tribe of the perpetrator. it is a grave offense that is punishable by death. jurists treat murder as only a quasi-ḥadd crime. Further. … The most important reforms were that revenge in kind could only be taken on the person of the offender and only after due trial. jurists developed a highly nuanced jurisprudence on the legality of rebellion and the treatment due to rebels in a sophisticated line of thought that reflected Qurʾānic ideals and the historical circumstances of political upheaval and uncertainty in the early Muslim community. Anderson. 4:92 (outlining the laws of homicide. see J.

2:163 (listing all seven). juristic definitions of ḥudūd laws encompassed acts with punishments not explicitly mentioned in the texts of the Qurʾān or Sunna. 30-38 (listing the penalties as follows: reprimand (taʾdīb). taghrīb). 60-65. and other non-punitive legal consequences (e. ursh]. and shaming to imprisonment. retaliation (qiṣāṣ) or financial compensation (diya) for personal injuries and murder.. At times. public exposure to shame (tashhīr) [which may include shaving the head and parading around town on the back of a donkey]. Ibn Rushd al-Ḥafīd. amputation of the hand or foot in some cases (qaṭʿ). 2:297 (listing eight categories— the seven mentioned plus retaliation (qiṣāṣ) for murder or personal injury). For classifications as they had developed in the 12th century. For instance.37 Crimes that did not fit under the ḥudūd rubric were those that were unclearly specified in the sources and so involved some element of discretion. sometimes in combination with crucifixion (ṣalb). e. though others restricted the meaning of apostasy to explicit denials of the existence of God or the prophecy of Muḥammad.). fines.. The foundational sources mention these acts. 2:30 (listing sex crimes. imprisonment (ḥabs). intoxication. Many jurists nevertheless counted them as ḥudūd crimes.                                                                   36 For classifications of crimes amongst jurists from the period of the earliest works of law in the 8th century. As noted above. some jurists counted bestiality or sodomy under the rubric of ḥudūd sex crimes while others restrict the ḥudūd label to illicit sex acts involving humans and between members of the opposite sex. corporal punishment. see Abū Ḥāmid al-Ghazālī. and contemporary accounts assessing these classical categorizations. banishment (nafy.36 The punishments for all of these crimes are severe. 1997). including lapidation (rajm) for adultery]. See Peters. ʿAbd Allāh al-Jubūrī. see. Crime and Punishment. Bidāyat al-mujtahid (Beirut: Dār al-Fikr.g. jurists expanded the scope of ḥudūd laws by construing the texts narrowly or broadly. alWajīz fī fiqh al-Imām al-Shāfiʿī. and death. n. juristic debates about which offenses count as ḥudūd laws. ʿAlī Muʿawwad and ʿĀdil ʿAbd al-Mawjūd (Beirut. though some others rejected that categorization. but do not attach defined punishments to them. Most jurists regarded sacrilegious statements against the Prophet as defamation tantamount to apostasy. defamation. ed. ranging from reprimand. Fiqh al-Imām al-Awzāʿī (Baghdad.them. a bar from testifying in court)). The two most widespread instances of that are apostasy and highway robbery. Crime and Punishment. For an overview of medieval criminal law classifications. cross-amputation [of the right hand and left foot] (al-qaṭʿ min khilāf).g.d. fines [ghurm. see Peters. theft—the four agreed-upon crimes—plus apostasy (ridda) and highway robbery (qaṭʿ al-ṭarīq)). the death penalty (qatl) [through various methods. In addition. 1977). flogging (jald). And so on. 25    37 .

in attempts to counter-define the ḥudūd laws. and the high stakes of criminal convictions drove them to develop firm criteria for defining the law. because this category permitted discretion to the victim’s family as to the extent of the offense. Bināya. Bidāyat al-mujtahid. the indeterminate nature of the texts.. e. Yet. 39 Māwardī held that unspecified crimes were punishable at the discretion of a presiding judge according to the policy preferences of the political authority (siyāsa) if they constituted behavior that would compromise public order or public interest (maṣlaḥa) that the caliph was charged with upholding. 2:577. ambiguity and severity in ḥudūd laws made it crucial for jurists to refine the definitions and theory of Islamic criminal law and thereby construct it in particular ways.g. See. Where a textualist or common law lawyer might see juridical legislation and common law crimes. Jurists did not see their interpretive activities as juridical legislation. Muḥammad Fahmī al-Sirjānī ([Cairo]: al-Maktaba al-Tawfīqiyya. 2:1022 (maintaining that the ruler must apply taʿzīr punishments in instances that affect the public interest). [1978]). 6:190 (Muḥammad ʿUmar ed. most Muslim jurists conceived of themselves only as restraining their own discretion and that of the political authorities in deference to the legislative supremacy of God. despite— or rather. cf. ambiguities surrounding the definition of the specified crimes compared to real-world acts. See Māwardī. Ḥāwī.. In short. ed. They not only had to                                                                   38 Only a minority of jurists placed the laws of qiṣāṣ in the ḥudūd category.38 The rest of the non-ḥudūd criminal laws comprised a catch-all category of acts that were considered offenses but never defined as such in the sources.39 Jurists defined and specified sentence ranges for these acts too. A combination of prior practices (attributed to Sunna) and necessity allowed the political authorities to prosecute and attach discretionary penalties (taʿzīr) to these acts. al-Aḥkām al-sulṭāniyya. Ibn Rushd al-Ḥafīd. 26    . 1990) (noting that Bazdawī does so in his Mabsūṭ). because of—the doctrine of divine legislative supremacy.this included the laws of retaliation (qiṣāṣ). idem. Badr al-Dīn al-ʿAynī. To the contrary. they staunchly subscribed to the doctrine of legislative supremacy and saw ḥudūd laws as authorized by nothing less than divine origins. Beirut.

27    . but they also had to devise some principled means of arguing that they were upholding both the letter and the spirit of Islamic criminal law in a way that paid due deference to the Legislator.confront political excesses in regulating violence and distinguish ḥudūd laws from other criminal laws conceptually. It is against this backdrop that the ḥudūd maxim emerged.

Medina’s patrol found a man in the town ruins with a blood-stained knife in hand. he was a butcher who had just finished slaughtering a cow. 7:355-57 (s. Both Sunnī 28    2 .” he announced. al-Dhakhīra fī maḥāsin ahl al-Jazīra.” deciding to leave the matter in God’s hands. The second man offered a corroborating story. The man explained that he thought that ʿAlī would never take his word over that of the patrolmen who had witnessed a crime scene. 1382/[2003]).). telling the executioners not to be so hasty. 88-89. he immediately confessed: “I killed him. 238 (paraphrased). the man explained.” He was brought before ʿAlī. It was then that the patrol arrested him.CHAPTER 1 Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd-Avoidance in Cases of Doubt Indeed. Immediately afterward. al-Ḥakīm Abū Muḥammad al-Miṣrī). he needed to relieve himself. Upon return. so entered into the area of the ruins. He figured that he could not plausibly deny having committed the crime. because he did not want the blood of two men on his hands. for all signs pointed to him as the perpetrator. the second man said that he had to step up. he came across the dead man. and stood over him in concern. and watched the events previously described unfold. On his way out.1 I.2                                                                   1 Abū ʾl-Ḥasan al-Shantarīnī.v. Introduction Given the appearance or accusation of criminal misconduct. ʿAlī turned to the condemned man. how does a judge really know when to punish the accused. avoidance of ḥudūd in cases of doubt Inna darʾa ʾl-ḥudūdi biʾl-shubahāt Is a ḥadīth related by all transmitters of reputed clout…. and what should she do in cases of doubt? Consider this case: During the time of the Muslim polity’s fourth caliph ʿAlī. incredulously. La-ḥadīthun rawāhu kullu ʾl-thiqāt…. “Do not kill him. Before the sentence was carried out. he passed the butcher on the way in. Iḥsān ʿAbbās (Beirut: Dār al-Thaqāfa. “What made you confess to a murder that you did not commit?!” he asked. Fāris Ḥassūn Karīm (Qum: Muʾassasat Amīr al-Muʾminīn. mid-3rd/9th c. He explained that he was the one who had murdered for money. standing over the corpse of a man who had recently been stabbed to death. Abī Ṭālib. another man hurried forward. But once the first man was condemned to death. bloody knife still in-hand. I did it. Ibrāhīm b. who sentenced him to death for the deed. and fled when he heard the sounds of the patrol approaching. In reality. Hāshim al-Qummī (d. Qaḍāyā Amīr al-Muʾminīn ʿAlī b. ed. He gave up. ed. 1979). When they arrested him. and confessed to the “obvious.

. 334-36 (detailing the methods by which court officials in England avoided prosecuting criminals as a precursor to the formalized rule of lenity). ed. See United States v. Cf. See Ibn Qayyim al-Jawziyya (d. Ct. Abī Ṭālib ([Qum?]: Markaz al-Ghadīr liʾl-Dirāsāt alIslāmiyya. The Origins of Reasonable Doubt (New Haven: Yale University Press. 35.S.3 In modern American law. 23 (defining the rule of lenity as the legal maxim “against applying punitive sanctions if there is ambiguity as to underlying criminal liability or criminal penalty”). 2008) (discussing the emergence of the reasonable doubt doctrine as a version of lenity in England and Continental Europe). Wasāʾil al-Shīʿa. In the above case.S. United States v. that is.”) (citations omitted). 82-84 (quoting Qaḍāyā ʿAlī and ʿAjāʾib [aḥkām Amīr al-Muʾminīn = Qaḍāyā ʿAlī.”4 In Islamic law. this took on various forms. 553 U. no. virtually incontrovertible proof of the crime’s commission through evidence that directly points to the accused as actual perpetrator. the textual basis was thought to be certain. 29  4   . Whitman. At common law and in medieval Europe. 43 (1820) (“The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. see now James Q. __ [128 S.” which directs judges to “avoid (imposing) fixed criminal sanctions (ḥudūd) in cases of doubt or ambiguity (idraʾū ʾl-ḥudūd biʾl-shubahāt). most legal systems require knowledge beyond a reasonable doubt. al-Ṭuruq al-ḥukmiyya. as given in the edition of Muḥsin Amīn al-ʿĀmilī. Legislation. or criminal culpability of the accused. al-Ḥurr al-ʿĀmilī (d.In answer to the question of when a judge knows when to apply a criminal sanction. as murder is clearly prohibited and as guilt is usually established through confession or                                                                                                                                                                                                 and Shīʿī scholars cite this as an example of clever ḥudūd jurisprudence. ʿAjāʾib Aḥkām Amīr al-Muʾminīn ʿAlī b. Appendix B. 2. it is expressed in a legal maxim called the “rule of lenity.” The ḥudūd maxim is a central principle of Islamic criminal law applied to situations where a judge has no firm textual or evidentiary basis for imposing a criminal punishment. The Origins of the Adversary Criminal Trial (Oxford. 2000)]). 2:172. 751/1350). Muḥammad Jamīl Ghāzī (Cairo: Maṭbaʿat al-Madanī. Eskridge et al. One byproduct of this requirement is a principle that punishments are to be avoided whenever there is ambiguity or doubt as to the textual basis. we may call a parallel expression the “ḥudūd maxim. New York: Oxford University Press. 1978). 2020]. 2003). *6 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”). see also John Langbein. evidence. 3 For the development of reasonable doubt jurisprudence in the English common law and in continental European law. Wiltberger. 1104/1692). Santos. 18 U.

They are taken. Neither did jurists who applied it during the same period. Ḥadīth scholars of the early period (i.6 Its prophetic pedigree is significant because ḥadīths form an authoritative source of Islamic law. What is the legal basis for such practices and how prevalent are they in Islamic law? The overwhelming majority of contemporary jurists—both Sunnī and Shīʿī— view the ḥudūd maxim as a sound prophetic ḥadīth.5 But an evidentiary doubt arose as soon as the real perpetrator stepped in. 30    . Thus. 1982). i. Ismāʿīlīs and Zaydīs. Cherif Bassiouni.. New York: Oceana Publications. alongside the Qurʾān. to legislate mandatory fixed sanctions for certain grave offenses. and although all can be considered in some sense Shīʿī and the latter two Imāmī. for shorthand. al-Naẓariyya al-ʿāmma. On evidentiary rules. NB: Though the term “Shīʿī” can refer to Zaydīs. 325-76. Ismāʿīlīs. al-Tashrīʿ al-jināʾī. e.. as in pregnancy of an unmarried woman as evidence of fornication or adultery (zinā). I refer to them by the designations for which they have become best known.e. The Islamic Criminal Justice System (London. I use the term Shīʿī (without qualification) to refer to the Twelver-Imāmīs. ʿAlī released the first man and pardoned the second—perhaps because the facts surrounding the case had become irresolvably doubtful without a failsafe means to validate one story over the other. who comprise the majority of the Shīʿa. It is the ability to appeal to the Prophet’s normative instructions that provides jurists with firm legal bases for adjudication. the prophetic provenance of the ḥudūd maxim may be considered to have facilitated. indeed anchored. and the sections on evidence in general works of Islamic criminal law.witness testimony. pp. see Maḥmaṣānī. When mentioning other Shīʿī groups. 30-34. especially in the sensitive area of criminal law. Behnām. ʿAwda.e. the jurisprudence of Islamic criminal law. Falsafat al-tashrīʿ.g. ed. What does this say                                                                   5 Mālikīs hold that guilt can be established by “strong” circumstantial evidence. It is curious then that in later juristic works the maxim achieves such prominence as a prophetic ḥadīth.. the first three centuries of the Hijra) typically did not regard it as such.. and Twelver or Ithnā ʿAsharīs. 6 See below. But the maxim was not always prophetic.

e. In this context. the extremely harsh nature of ḥudūd punishments marks them as deterrents against moral offenses.8 In significant ways. substantive rules impose interpretive requirements. Abū Muḥammad b. 1:99. such as narrow construction. Abū ʾl-Ṣalāḥ al-Ḥalabī. 3. See also the overviews of Islamic criminal law listed in n. 1:101 (citing the similar Sunnī view of a 3rd/9th century scholar. 404 (noting the Shīʿī view that ḥudūd violations are acts known rationally to be major moral offenses (qabāʾiḥ) that also warrant a punishment as specified by God). al-Kāfī fī ʾl-fiqh. the ḥudūd maxim captures these ideas of divine legislative supremacy and deterrence theory. Māwardī. e. Muḥammad Riḍā al-Sayyid Ḥasan al-Kharsān (Najaf: al-Maṭbaʿa al-Ḥaydariyya. By contrast. that ḥudūd are “punishments with which God deters people from committing prohibited [acts] and encourages them to follow His commands”). 8 See. Riḍā Ustādī (Iṣfahān: Maktabat al-Imām Amīr alMuʾminīn ʿAlī al-ʿĀmma). 1971).7 Moreover.. Ḥāwī.g.about the legal basis for the practice of ḥudūd-avoidance and the role of legal maxims in early Islamic law more generally? One view of legal maxims is that they reflect substantive canons of construction. ed. Ḥāwī. Qutayba (d. it follows that ḥudūd punishments cannot apply without a clear statement that a certain activity falls within the ambit of the prohibition. 252. This essay traces the transformation of the maxim from its earliest appearance to its later conception. for certain areas of law such as criminal law. Māwardī. ed. I first examine the maxim as it appears in ḥadīth collections during the first three centuries of the Hijra.. Islamic legal theory specifies that only God can impose and has imposed fixed punishments for certain grave offenses. An example of a linguistic rule is that jurists should follow the plain meaning of the text unless clear indicators require a departure from that meaning. 31    . and translates them into a canon of narrow construction for matters relating to criminal law. These are presumptions about the meaning of a text drawn from substantive and structural concerns rather than just linguistic rules of thumb. 276/889). then I assess its parallel appearances in                                                                   7 See. al-Sharīf al-Murtaḍā. Intiṣār.g.

See Harald Motzki. trans. This section will reference only works and the death dates of traditionists mentioned in the text where it is specifically relevant to the argument. 1997). The Ḥudūd Maxim as a Ḥadīth?9 A. 124/742).11 With one exception. II. Jahrhunderts (Stuttgart/Leiden: Brill. The Muṣannafs of ʿAbd al-Razzāq and Ibn Abī Shayba are illuminating because they record statements from their teachers and from earlier jurists. Muʿādh b. Jabal. The Origins of Islamic Jurisprudence: Meccan Fiqh Before the Classical Schools (2001). Only after this period do ḥadīth collectors and jurists alike begin to ascribe prophetic origins to the maxim. Accordingly. Companions ʿUmar. Only two of the six canonical Sunnī ḥadīth collections—those of Ibn Mājah and Tirmidhī—record a version. Die Anfänge der Islamischen Jurisprudenz.                                                                   9 Detailed references for each ḥadīth version of the ḥudūd maxim. 96/717) and traditionist Ibn Shihāb al-Zuhrī (d. The earlier collections of ʿAbd al-Razzāq al-Ṣanʿānī and Ibn Abī Shayba contain an additional five. the Ṣaḥīḥs of Bukhārī and Muslim. after it was transformed from an anonymous principle into a rule that was regarded as both a central canon for resolving legal doubt and a prophetic ḥadīth. esp. Early Ḥadīth Collections Ḥadīth scholars and critics of the first three centuries of the Hijra adduce several versions of the ḥudūd maxim—none of them in the form that came to be popularized as above. Ihre Entwicklung in Mekka bis zur Mitte des 2.and early 2nd/8th-century written works and teachings. they do not confine themselves to authenticated prophetic reports as the canonical collections mainly attempt./8.juristic works. as well as jurist Ibrāhīm al-Nakhaʿī (d. The single attribution to the Prophet is a weak one. none of these scholars seriously thinks that this was a prophetic statement. 11 That is. I examine later ḥadīth collections only to uncover entirely new versions of the maxim as a ḥadīth now attributed to the Prophet.10 All attribute the maxim to various Companions and to early jurists. See Appendix. where citations of it differ significantly. especially the principal two. and ʿUqba b. 51-73. Finally. They also preserve records of 1st/7th. Ibn Masʿūd. ca. ʿĀʾisha. 10 32    . ʿĀmir. It is here that we can readily observe the firm entrenchment of the maxim in Islamic criminal jurisprudence. Marion Katz. I turn to the later juristic sources to consider new legal conceptions and applications of the maxim. along with the collections in which they appear and the full chains adduced for each are listed in the Appendix.

458/1066) record chains that attribute the ḥadīth mostly to Companions. without any of them asserting that it was a prophetic ḥadīth. 1991).13 In sum. and even then.14 Only later—beginning in the mid4th/10th century—do we find attributions of the maxim to the Prophet. 363/974) lists no chain. see also Appendix. hypothesizing that the failure to include the maxim indicates a position against the practice of ḥadd avoidance. Qaḍāyā. As elaborated below. Whenever there is some hint of prophetic attributions.12 The other four canonical collectors do not mention the maxim. and Bayhaqī (d. 385/995). and Imāmī collector Ibn Bābawayh (d. And there appear to be no records of the statement in Shīʿī sources of the time. not reliably. Ismāʿīlī collector Qāḍī Nuʿmān (d. 365/976).according to Aḥmad b. It thus makes sense that the maxim would not appear in canonical or any other earlier ḥadīth collections as a prophetic ḥadīth. However. ed. that the maxim is recognized through language echoing the standard formula at least as early as the 3rd/9th century. it is apparent. It is not that no one knew of the standard version in that early period. not as a ḥadīth. Ibn Mājah is the only one who attributes the report to the Prophet (by way of Abū Hurayra). Ḥanbal. see Maribel Fierro. 33    . 381/991-2) attributes the saying to the Prophet without a chain. That is. Few thought those versions to be of prophetic origin and none thought the standard formulation to be prophetic. Moreover. Dāraquṭnī (d. Ḥanbal and most other traditionists. however. Ḥanbal and later ḥadīth critics reject this version (or its attribution to the Prophet) as inauthentic because of a problematic link in the chain of transmission. ʿAbd Allāh al-Darwīsh (Beirut: Dār al-Fikr. Musnad. 15 14 13 Sunnī collectors Ibn ʿAdī (d. ḥadīth critics typically assail them for weak links in the chains of transmission. the maxim was widely used in a standard form by contemporary jurists. For a similar observation.15 What we are left with then is this picture: In collections of traditions from the first three centuries of the Hijra. 5:416. as I discuss below. inclusion seems less a matter of support than circulation and requirements of ḥadīth-authenticity. Aḥmad b. that version circulated simultaneously amongst scholars familiar with versions                                                                   12 Of the ḥadīth scholars surveyed here. there is no record at all in extant ḥadīth compilations from the first three centuries of what was to become the standard version of a common “prophetic” maxim (idraʾū ʾl-ḥudūd biʾl-shubahāt). 253-54 (quoting ʿAlī ruling’s that the ḥadd does not apply to a man accused of illicit sexual relations: udriʾ ʿanh al-ḥadd). no ḥadīth collector of the early period reliably traces the ḥudūd maxim to the Prophet. See Aḥmad b. See Qummī. we find versions of the ḥudūd maxim that differ from what would become the standard formulation.” 215-19. “When Lawful Violence Meets Doubt.

Schacht concluded that Islamic law could not have been older than that period. Schacht posits that a common link in transmission chains indicates that a report emerged at the time of the common link and was later attached to more authentic chains of different versions of the same report.. 124/742).A.16 Schacht traces its origins to second-century Kufa. thereby lending authority to the statement appended to a reliable ḥadīth chain.e. Motzki (Aldershot. see Motzki. According to his common link theory. if there is one. 1983). VT: Ashgate/Variorum. Juynboll. 154-205. Provenance. For an elaboration of this theory. Finding that most common links occur in the first half of the 2nd/8th century. On Schacht’s Origins of Muhammadan Jurisprudence (Riyadh: King Saud University. is often only a useful tool from which to distill an approximate chronology and possible provenance of [a] ḥadīth. Muslim Tradition: Studies in Chronology. Juynboll. Instead. 25-6. Ch. 34    17 .                                                                   16 Joseph Schacht. the Prophet—ʿĀʾisha— ʿUrwa—Zuhrī) was regarded as particularly strong and reliable. Moreover. M. the report would have been introduced in the time of the famous Medinese traditionist Ibn Shihāb al-Zuhrī (d. 175-216.A. Accordingly. Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press. Origins. Origins. Mustafa al-Azami. see G. 1950) 180-89 (section on “Legal Maxims: Pt.H. Schacht. Ziyād and other Kufan traditionists. 171-75. Fierro. one might add that at least some early transmitters of this ḥadīth should have come from Medina. H. 2. New York: John Wiley and Sons. they engage in critical attempts to locate its origins by time and place. 214 (“The common link. 2004). Burlington. ibid. 6). 1985). ed. or later traditionists would have initiated and consistently spread the chain leading up to Zuhrī because the earlier “fictitious part” (i. “Some Isnād-Analytical Methods Illustrated on the Basis of Several Woman-Demeaning Sayings from Ḥadīth Literature. “When Lawful Violence Meets Doubt. Scholarly Perspectives on the Ḥudūd Maxim as a Ḥadīth Joseph Schacht and Maribel Fierro astutely have doubted the prophetic provenance that later jurists attach to the ḥudūd maxim as a ḥadīth. New York: Cambridge University Press.17 Zuhrī. Where then did they come from? B.H.” in Ḥadīth.contained in the books of both ḥadīth and law. For criticisms of this theory. 217 (adding that the common link phenomenon was buried under accretions and concluding that it is a rarely noticeable phenomenon therefore of limited utility). traditionists of the early period affirmatively regarded these statements as non-prophetic. Yazīd.. and Authorship of Early Ḥadīth (Cambridge.”). see also G. he is the lowest common link in a chain that proliferates from him to Yazīd b.” See Appendix (isnād map).

ed. Tahdhīb. Bashshār ʿAwwād Maʿrūf (Beirut: Muʾassasat al-Risāla. Sinān (d. as noted in most chains for the ḥudūd maxim. Tahdhīb alTahdhīb. Jordan) and Abū ʾl-ʿAlāʾ Burd b. 6988. 8037. Additionally. Accordingly. no. Mizzī. He may also have been the reliable Kufan. (The sources are uncertain as to whether the proper name is Yazīd b. Damascene. 3781. Ibn ʿAdī . 20:242-45. (Abī) Ziyād. ed. alLajna min al-Mukhtaṣṣīn bi-Ishrāf al-Nāshir (Beirut: Dār al-Fikr. Specifically. When the full range of the ḥadīth collections of the period are taken into account. ʿAlī Muḥammad ʿUmar (Cairo: Maktabat al-Khānjī. (Abī) Ziyād who lived at the time of the one found in these chains. Rabīʿa. ʿAqīl (d. Further. see Ibn Abī Ḥātim. no. such that more chains with Medinese authorities are to be expected. al-Kāmil fī ḍuʿafāʾ al-rijāl. or Kufan. quite as absolute as appears from the chains that Schacht analyzed. See Ibn Saʿd. the chain fans out to non-Kufan traditionists ʿUqayl and Burd. 4:43-46. whose identity is confused in the sources—which variously cite him as Basran. 4000 (ʿUqayl). al-Jarḥ waʾl-taʿdīl (Hyderabad: Maṭbaʿat Jamʿiyyat Dāʾirat al-Maʿārif al-ʿUthmāniyya. or whether those were two different people who transmitted to and from some of the same traditionists. here. ed. he would not have been the only one. 1986). however. 1984). 32:134-35 (munkar al-ḥadīth). Ziyād or Yazīd b. On the Damascene Yazīd. The Yazīd in the chains for our report of the ḥudūd maxim is not the Basran or the Medinese. Kitāb al-Ḍuʿafāʾ waʾl-matrūkīn. no. ed. who transmitted from Zuhrī and to Wakīʿ. it is impossible to tell conclusively which of the Yazīds the traditionists thought transmitted the text—the Damascene or the Kufan. there are references to a potentially non-Kufan Yazīd b. 11:285. al-Ṭabaqāt al-kubrā. 9:262-63. Abū ʾl-Ḥajjāj al-Mizzī. no. 2001). a slightly different picture emerges. 1994). there were four potential candidates of known traditionists named Yazīd b. This puzzle about just which Yazīd it was is an example of the proliferation of names on the basis of corruptions in oral and written transmission (though there were often other reasons for confusion). 655 (Burd). Abū Khālid ʿUqayl b. and thus were regularly confused in the sources. The absence of non-Kufan transmitters in the chain. ed. no. al-Jarrāḥ as did the Yazīd in the ḥudūd maxim chains. it was frequently impossible to tell which traditionist was meant when copying ḥadīths from written works. he may have been the unreliable Damascene who transmitted from Zuhrī and to Muḥammad b. the son of Ziyād or Abū Ziyād—as these lived at the same time and place. 1970). and that if the Medinese Zuhrī indeed heard the saying from earlier authorities. Tahdhīb al-Kamāl fī asmāʾ al-rijāl. Muṣṭafā ʿAbd al-Qādir ʿAṭāʾ (Beirut: Dār al-Kutub al-ʿIlmiyya. This absence is not. no. 135/752) was originally from Damascus before he moved to Basra. 35    . 3:209. no. neither of whom transmitted traditions to prominent traditionist Wakīʿ b.                                                                   18 These two traditionists are Shāmī. from the Medinese Zuhrī. 1107.) In sum. 9:262. 8035. Ibn Ḥajar al-ʿAsqalānī. transmitted to some of the same traditionists. 11:284. Tahdhīb. would support Schacht’s idea that the statement is of Kufan stock and was projected back to Medinese authorities before being ascribed to the Prophet. see Ibn Abī Ḥātim. 1992). 32:130-31. 7:519 (ʿUqayl). as in one chain for the ḥudūd maxim. 1109 (ḍaʿīf). Abī Ziyād. Instead. Ibn al-Jawzī. Tahdhīb al-Tahdhīb. 144/761-2) is from Ayla (in present-day Aqaba. no. each from one of the aforementioned regions.where the Prophet and his followers—said to have articulated the saying—lived. On the Kufan Yazīd. 7:2714-15 (munkar al-ḥadīth). Abū al-Fidāʾ ʿAbd Allāh al-Qāḍī (Beirut: Dār al-Kutub al-ʿIlmiyya. al-Jarḥ waʾl-taʿdīl. Khālid b. other than Zuhrī. there is a Medinese Yazīd who is confused with the Damascene one. Ibn Ḥajar.18 Nevertheless. Mizzī.

Islamic law—and especially criminal law20—was too unsophisticated to have “be[en] possible in the first century. An Introduction to Islamic Law (Oxford: Clarendon Press. Kufan traditions of this type were normally ascribed to Ibrāhīm al-Nakhaʿī (d. as was the ascription of any ḥadīth with legal import to any figure in the 1st century of the Hijra. the theory of punishments. Origins. as here. with its distinction of private vengeance. whom Schacht considers the first fully historical Iraqi jurist and the “foremost representative of the                                                                   19 Schacht.” non-ritual law was non-existent.. the Prophet—ʿĀʾisha—ʿUrwa—Zuhrī) suffices for Schacht’s point that the maxim may have originated or at least proliferated most pronouncedly in Kufa. For Schacht.”21 Accordingly. of concurrence is lacking. he “dismiss[ed] . Abī Sulaymān (d. at most. no general concept of penal law in Islam. ca. 187 (“There exists . ḥadd punishments. and coercive and preventative measures. taʿzīr. 96/717). 184 (describing “a considerable number of legal maxims”). of complicity. Idem. as legendary. that of mitigating circumstances does not exist. Origins. shows a considerable variety of ideas. generally as sayings of Iraqi origin.”) (emphasis in original). Schacht believed this scenario to reflect a trend shared by many legal maxims.the presence of an overwhelming majority of Kufan transmitters after the early Medinese part of the chain (as noted. 36  21   . any theory of attempt. 120/738).. instead.19 For him. then projected back to Ibn Masʿūd and earlier authorities all the way back to the Prophet. this maxim could not be traced back to the “legendary” Ibrāhīm. 1964)... and consequently any figure or legal doctrine attributed to that period. it was attributed to him by his pupil. But his stated assumptions about early Islamic law led him to conclude that any such ascription to Ibrāhīm must have been categorically false. 235-36. Ḥammād b. The concepts of guilt and criminal responsibility are little developed. On the other hand. 20 Idem.

As an anonymous slogan.. she concludes that the dating was different from the one that                                                                   22 Ibid. I would group the ḥadīth versions into three broad categories of content. then to a number of individual Companions. 6. and post37    . The second category requires ḥudūd avoidance typically in the presence of shubha or shubahāt.. The first prescribes ḥudūd avoidance given some “exculpating cause” or “to the extent possible. and finally to the Prophet .25 In this way. 237-40 (quoted and discussed in Fierro.” 220). the maxim is introduced with the words ‘they used to say’. Her more detailed categories differ from mine..”22 He concludes that the trajectory of the maxim must have been as follows: The maxim ‘restrict ḥadd punishments as much as possible’ started as an anonymous saying. Fierro distinguishes between two iterations of the maxim—one that advocates ḥudūd avoidance “as much as you can” (mā ʾstaṭaʿtum) and another—the standard version—that invokes it in the presence of “doubt and ambiguities” (biʾlshubahāt). as in versions 4. and 5. “When Lawful Violence Meets Doubt. The maxim cannot be older than the end of the period of the Successors. I see no problem in considering that the legal maxim already circulated at the times of Ibrāhīm al-Nakhaʿī.24 Unlike Schacht. “When Lawful Violence Meets Doubt. with questionable attributions to the three Companions Ibn Masʿūd. and 7.. ʿĀmir (version 4) and with other attributions to Zuhrī (version 6) or ʿUmar (version 7). but this basic distinction is germane to the discussion here. 23 24 25 Ibid. then Ibrāhīm al-Nakhaʿī (d. “When Lawful Violence Meets Doubt.Kufian Iraqian school in the generation preceding Abū Ḥanīfa. 219-20. 184 (cited and discussed in Fierro. was then ascribed to the ‘Companions and Successors’ in general. This version combines the “as much as possible” and “ambiguity” language with a rationale explaining why ḥudūd sanctions should be avoided. 96/717) could well have transmitted it on his own (hence the fact that he used the [anonymous] formula kāna yuqālu) and Ḥammād just took it from him. Thus. If the legal maxim “restrict ḥadd punishments as much as possible” belongs to the realm of “ancient opinions” circulated by the end of the period of the Successors. Version 2 is noteworthy because it becomes the most oft-cited (in later works) and most widely diffused. Fierro agrees with his placement of the maxim in Kufa but disagrees with his conclusions about dating: I find it difficult to conciliate what Schacht says in the section on Ibrāhīm alNakhaʿī with what he had said earlier [in his chapter on legal maxims].23 In a recent review of Schacht’s theories on this maxim.” 221). It alone appears at all levels of the ḥadīth collections—the pre-canonical.. with eight independent chains in contrast to the single chains of all other versions. ca. see ibid. 3. Muʿādh b. canonical. Jabal. and ʿUqba b.” as in versions 1. which have questionable attributions to Ibn Masʿūd or to Ibrāhīm al-Nakhaʿī. The third category combines the first two and/or offers a rationale for ḥudūd avoidance.” 221. . as in versions 2 and 8. Fierro. this is one of the formulas used of ancient opinions.

Fierro argues that Schacht. and my study takes another view of the significance of this distinction for early Islamic legal practices. he merely adopted a single translation of the various formulations of the ḥadīth-cum-maxim. Tirmidhī. Accordingly. Ibn Abī Shayba.” While such conflation may be a reasonable strategy in some contexts where a single ḥadīth has different wording. like Ibrāhīm al-Nakhaʿī. This we can assume. if he allowed the possibility of a first-century dating. and Bayhaqī. as we can observe jurists referencing the latter version rather than the former. Fierro has one view of the importance of disaggregating the two for dating. the “as much as you can” version came first. either or both would be the oldest form(s) of the maxim as one of the anonymous “ancient sayings. If we were to take Schacht’s translation “restrict ḥadd punishments as much as possible” (emphasis added) as an indication of the version of the maxim that he was reviewing.Schacht would have proposed had he made this distinction and seen to which end the jurists employed each. such as Zuhrī. it also appears in juristic works as early as Abū Yūsuf’s Kitāb al-Kharāj. here. without distinguishing between the two. Most ḥadīth scholars reject the single strands connecting any version of the ḥadīth back to the Prophet. he seems to have had in mind either the “as much as you can” or the biʾl-shubahāt version. would have agreed with her dating had he noticed this distinction between versions. For Fierro. then he missed the presence and thus import of the existence of two different formulations. In other words. to be sound. More likely. The distinction is important. as in Abū Yūsuf’s Kitāb al-Kharāj. see Appendix. and on his theory. when he referred to Ibrāhīm al-Nakhaʿī. or jurists. Dāraquṭnī. but find that the attributions to ʿĀʾisha or later transmitters. 38    . because we know that he had access to sources referencing both formulations. it obscures a material difference. and the “doubts and ambiguities” version followed later in an attempt to curtail the arbitrariness of the                                                                                                                                                                                                 canonical collections of ʿAbd al-Razzāq. For details.

was the oldest formula . the standard version “is explicitly associated with the two most important pupils of Abū Ḥanīfa.” With this concern at the back of the minds of the elite. she relies on two central observations.”26 To that end. esp. that formula must have been seen as no longer acceptable: ḥudūd had to be taken seriously. 236 (idraʾū ʾl-ḥudūd ʿan al-muslimīn mā ʾstaṭaʿtum).. As corroborating evidence. In sum. .. 231-22 (discussing Abū Yūsuf’s case). this version comes at times with a telling addendum instructing judges to overlook the faults of those of high station. she concludes. 27 28 29 Ibid. A new wording was necessary.. 222-23 (discussing Zufar’s case). especially under pressure from the ‘pious opposition’ .29 Second.” which “must have been influential in the formulation of the principle idraʾū al-ḥudūd bi-l-shubuhāt. while still allowing for possible ways of escaping the penalty... . In her estimation. .”27 She then describes a sea change: By the second half of the second/eighth century... Zufar and Abū Yūsuf”—who continued to benefit from the earlier and more flexible formulation. 39    . see also ibid.. she elaborates.. “[t]he only way for Muslims of high social status to escape the ḥudūd penalties was to create a culture of indulgence in which every possible means was to be used in order to avoid the punishment... Ibid. Ibid. ḥudūd avoidance was quickly linked with “concern for people of high social standing. she relates several stories from later historical reports that she takes as proof that “the general and indiscriminate import of that saying .former. 222-26. as reflected in the [“as much as you can”] formula . one that eliminated its indiscriminate and arbitrary character.28 She postulates that this led to the Ḥanafī circulation of the standard formula (idraʾū ʾlḥudūd biʾl-shubahāt) in Kufa. elite Ḥanafī jurists who stood to benefit from a broad disregard of                                                                   26 Ibid. First. especially when a clever jurist was able to find a ‘hole’ in the law.

Abū Yūsuf mentions the popular version—alongside other versions—in his Kitāb al-                                                                   30 Ibid. where he records traditions that he learned from Abū Ḥanīfa. Kitāb al-Āthār. Thus. But it is not clear that they did so because of a concern with social class.ḥudūd laws are the ones responsible for circulating the maxim.. Shaybānī adduces examples in his Kitāb al-Āthār—applying the principle and pointing to the position of his teacher Abū Ḥanīfa. 236. other jurists as well. and “concern for [such] people of high social standing . The sources suggest that Abū Ḥanīfa himself used the maxim in this popular form. 222.. we turn to the view of the maxim amongst Ḥanafīs.31 Also. and it seems very clear that they were not the ones concerned with producing a prophetic attribution. The aim is to provide a framework for assessing theories of the maxim’s dating and function. and we know that his principal associates applied it. as noted above. but the chain is consistent with Ibn Abī Shayba’s attribution of the report to Ibrāhīm al-Nakhaʿī from ʿUmar. see Appendix). Ḥanafīs and the Use of the Maxim in Iraq Abū Ḥanīfa’s circle expounded and applied the maxim early on in the form that has been popularized amongst most subsequent jurists: idraʾū ʾl-ḥudūd biʾl-shubahāt. and importantly. who in turn drew on opinions of Ibrāhīm al-Nakhaʿī. Ḥasan al-Shaybānī.30 Before addressing these ideas in detail. There is a problem in his citation: the content is consistent with ʿAbd al-Razzāq’s record of a report from Ibrāhīm al-Nakhaʿī (on anonymous authority). ed. 136 (bāb dirāʾ [sic] al-ḥudūd) (citing version 2. III.. Nevertheless. 40    . Ḥudūd Maxim amongst Early Jurists A. but tells us that his teacher adopted a variant of version 2. Khadīja Muḥammad Kāmil (Karachi: Idārat alQurʾān waʾl-ʿUlūm al-Islāmiyya. Shaybānī does not mention the standard version in this work. 31 Muḥammad b. 1998-9). the basic point is there that Abū Ḥanīfa adopted the maxim. must have been influential in the formulation” of the maxim as a prophetic ḥadīth with the standard formula (idraʾū ʾl-ḥudūd biʾl-shubahāt). where Ibrāhīm alNakhaʿī attributes the saying to ʿUmar.

. but this is likely an interpolation of what later came to be so standard that the copyist easily thought it belonged in the wording. Pleased. no-name jurist who came to Baghdad after Abū Ḥanīfa’s death. the edition of Aḥmad Muḥammad Shākir (Cairo: al-Maṭbaʿa al-Salafiyya. When the latter came. there are colorful stories of instances in which Abū Yūsuf and Zufar applied the maxim. also with the isnād later identified by Ibn Abī Shayba (Manṣūr—Ibrāhīm (alNakhaʿī)—.. 303 (Arabic text: idraʾū ʾl-ḥudūd ʿan ʿibād Allāh mā ʾstaṭaʿtum. that is.. One of the local leaders had violated an oath. ibid. ed.. version 3 together with the truncated isnād (al-Aʿmash—Ibrāhīm [al-Nakhaʿī]). One day. i. as appears in Ibn Abī Shayba’s version). the man gave Abū Yūsuf a sizeable sum of money and secured a house for him in town close to his own. combining the standard version with the appendage that appears in various ḥadīth versions (ma ʾstaṭaʿtum) plus the rationale adduced in the last part of version 2 (al-khaṭaʾ fī ʾl-ʿafw . Muḥammad Ibrāhīm al-Bannāʾ (Cairo: Dār al-Iṣlāḥ. According to the story.. Abū Yūsuf was a poor. with brackets in original text and a note from the editor that the shubahāt phrase inside the brackets appears in a Taymūriyya manuscript of this work). using shubahāt. he noticed a young man with an air of royalty who appeared to                                                                   32 Abū Yūsuf records several versions: a form of the standard version (which he attributes to “Companions and Successors”) along with a few others. this famous ʿAbbāsid caliph attempted to protect a young family member (possibly his son) from punishment for committing a sex crime (zinā). ibid. orphaned.. and was looking for a juristic opinion as to what to do in expiation for what was widely regarded as a weighty sin.e. for which he provides familiar isnāds.. 41    . e. ibid. The caliph explained that his sadness had to do with a religio-legal matter for which he needed the aid of a jurist to render an opinion. 305 (Arabic text: idraʾū ʾl-ḥudūd ʿan al-muslimīn mā ʾstaṭaʿtum. fa-idhā wajadtum liʾl-muslim makhrajan fa-khallū sabīlahu fa-inna ʾl-imām la-in yukhṭiʾ fī ʾl-ʿafw khayrun lahu min an yukhṭiʾ fī ʾl-ʿuqūba. in a case involving Hārūn al-Rashīd... 1347/[1929])..Kharāj.g. this same man went to Hārūn and found him depressed. 304-35 (Arabic text: la-an uʿaṭṭil al-ḥudūd fī ʾl-shubahāt aḥabb (or khayr) min an uqīmahā fī ʾlshubahāt. See Abū Yūsuf. 181 (Arabic text: idraʾū ʾl-ḥudūd ʿan al-muslimīn [biʾl-shubahāt] mā ʾstaṭaʿtum . Kitāb al-Kharāj. The saying appears in other editions with formulations close to the standard one. For example. Abī Ziyād— Zuhrī—ʿUrwa—ʿĀʾisha).32 Moreover. version 7. waʾl-khaṭaʾ fī ʾl-ʿafw khayr min al-khaṭaʾ fī ʾl-ʿuqūba.e.. i. 303 (Arabic text: idraʾū ʾl-ḥudūd biʾl-shubahāt mā ʾstaṭaʿtum. so the man immediately suggested Abū Yūsuf. together with the familiar isnād transmitted directly to Abū Yūsuf rather than through the intermediate Wakīʿ: Yazīd b. and no expiation was due.. [1981]).. i.e. —ʿUmar)). When the leader encountered Abū Yūsuf..)). the jurist told him that he had not technically violated his oath. version 2. See.

Nishwār almuḥāḍara wa-akhbār al-mudhākara. “When Lawful Violence Meets Doubt. the matter was sufficiently doubtful to avoid the ḥadd sanction.” Hārūn asked. The Table Talk of a Mesopotamian Judge (London: Royal Asiatic Society. Christian Lange. ʿAbbūd al-Shāljī (Beirut: Dār Ṣādir. ed. 1922). the caliph bestowed upon Abū Yūsuf a considerable amount of money and favor on behalf of the offending prince. According to the lore.S.” 231-32.33 The anecdote is obviously a stylized narration. see D.) In gratitude. [1968]). Ibn al-Wardī. “What is your opinion. 1:383 (quoting Ibn Khallikān and reporting this event under the year 182 AH). The young man gestured at Abū Yūsuf in an appeal for help. its effect is to feature the ḥudūd maxim in popular form as prophetic. 1390/1970). 1969). Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University Press. Margoliouth trans. must [the perpetrator] receive the ḥadd punishment?” Surmising that the caliph must have been referring to one of his family members—the same young man whom he had passed on the way—Abū Yūsuf replied. See Qāḍī al-Tanūkhī.” Hārūn prostrated (in joy). a confession or four eyewitnesses to the act). this episode eventually led to Abū Yūsuf’s judicial appointment and ensured his continuing elite status.. 252-4 (for an English translation. “No.” Judicial knowledge is insufficient evidence to establish a crime.34                                                                   33 This story is repeated relatively frequently in the literary sources. Abū Yūsuf explained that his opinion was consistent with the Prophet’s instructions to “avoid ḥudūd punishments in cases of doubts or ambiguities (idraʾū ʾl-ḥudūd biʾl-shubahāt). Taʾrīkh Ibn al-Wardī (Najaf: al-Maṭbaʿa al-Ḥaydariyya. “concerning an imām who witnessed [another] man committing zinā. He proceeded to his appointment with the caliph. 42    . he said. 1971-73). see also Ibn Khallikān.. Mirʾāt al-jinān wa-ʿibrat al-yaqẓān fī maʿrifat ḥawādith al-zamān (Beirut: Muʾassasat al-Aʿlamī liʾl-Maṭbūʿāt. but the jurist could not make out what he wanted. 136-37). Justice.e. with no direct or corroborating evidence (i. (We are reminded of Ali’s decision regarding the murder in Medina told at the outset. 6:381-82. 2008). minus the intrigues and favors of royalty. See Fierro. 34 Scholars recently have taken note of this story in contexts discussing the ḥudūd locked in his room. see also Abū ʿAbd Allāh al-Yāfiʿī. Wafayāt al-aʿyān (Beirut: Dār al-Thaqāfa. 1:281 (reporting this event under the year 181 AH). 192.

” Zufar asked. the maxim became a cause for opprobrium on the part of a man named ʿAbd al-Wāḥid b. “When Lawful Violence Meets Doubt. from the first three caliphs. 1981). in the case of dhimmīs. no. Hudhayl (d. Siyar. and it is food for thought for Zufar concerning an outlying early Ḥanafī position. as well as Bayhaqī. al-Sunan al-kubrā. 8:40-41 (entry for Zufar b. when he encountered Zufar. 218-19 (mentioning muʿāhad. ʿAbd al-Wāḥid responded that “you say ‘idraʾū ʾl-ḥudūd biʾl-shubahāt. ed. 158/774). Zufar is said to have retracted an early Ḥanafī ruling that a Muslim could receive the death penalty for intentionally killing a non-Muslim. ed.’ but when you are faced with the most significant (or harshest) punishments. Sunan). you rule that they are to be imposed despite the existence of shubahāt. Thus. Fierro cites this same story as it appears in Dhahabī. For the early Ḥanafī rule that a Muslim is eligible for the death penalty for killing a non-Muslim. Siyar aʿlām al-nubalāʾ.The maxim also appears in an episode involving Zufar b.” 222 (citing Dhahabī.” Here. see also Shams al-Dīn al-Dhahabī. one of the main students of Abū Ḥanīfa after the “two Companions” Abū Yūsuf and Shaybānī. But there are good reasons to                                                                   35 Abū Bakr al-Bayhaqī. ʿAbd al-Wāḥid rebuked him by saying that “you all [i. 8:31.” “And what is that?” Zufar asked. “How so?” ʿAbd al-Wāḥid responded. 43    . Ḥusayn al-Asad Shuʿayb al-Arnaʾūṭ (Beirut: Muʾassasat al-Risāla. Muḥammad ʿAbd al-Qādir ʿAṭāʾ (Beirut: Dār al-Kutub alʿIlmiyya. Ziyād. Āthār. but you say that he is. According to the story. Zufar and the early Ḥanafīs] have circulated a saying (ḥadīth) amongst the people that is laughable. and mājūs according to Abū Ḥanīfa). 198/813]). 1994). yahūdī.35 * * * Fierro uses such cases recounting the application of the ḥudūd maxim to develop a theory that the maxim was a principle employed (or perhaps designed) to benefit the upper-class and that this was done under the aegis of prophetic attribution. reporting the story as related by ʿAbd al-Raḥmān al-Mahdī [d. For Zufar. Fierro. see Shaybānī. “The Prophet said that a Muslim is not to be put to death for the homicide of a non-Muslim (kāfir).e.. Hudhayl. 15700. naṣrānī. it serves as a boon for Abū Yūsuf personally and professionally.

the maxim is an anonymous saying in its standard formula and is otherwise attributed to Companions in different formulations. For citations of the maxim as a prophetic ḥadīth in other nonlegal works. and his teacher’s teacher Ibrāhīm al-Nakhaʿī). There. So far as I can tell. is firmly embedded in Islamic tradition as prophetic. 44    . but there is no indication that he means this in the later Sunnī technical sense of the term as a prophetic statement. as we shall see. Did it spread beyond their circle?                                                                   36 This is outlined in Parts IV and V below. we must conclude that Abū Ḥanīfa and his associates most likely cited and discussed the maxim in its standard form as an anonymous saying (as did Abū Yūsuf in Kitāb al-Kharāj.36 Abū Yūsuf does not himself refer to the maxim as a prophetic saying in his Kitāb al-Kharāj. Fierro wonders whether ʿAbd alWāḥid chastised Zufar because of his associates’ incoherent application of the maxim or because of their (presumed) prophetic attribution. Instead. “When Lawful Violence Meets Doubt. as Zufar does not attribute the saying to the Prophet in the story. As for Zufar. What is certain is that this was a legal maxim that was applied by Ḥanafīs in Kufa. through various chains of transmission. ʿAbd al-Wāḥid refers to the saying as a ḥadīth. as Schacht and Fierro concluded. It is told some two centuries after the events it relates at a time when the maxim. see Fierro. There is no reliable evidence that they attributed it to the Prophet. this question does not seem to arise here.” 226. his teacher Abū Ḥanī the prophetic attribution in Abū Yūsuf’s story. All contemporaneous indications suggest that they did not.

She had been married before. 8:255 (duriʾa ʿanh al-ḥadd biʾl-shubha). 161/778). though this was prohibited by ʿUmar b. ʿAbd al-ʿAzīz (r. along with some others. that the ḥadd punishment for fornication or adultery (zinā) is to be averted from a man who has intimate relations with his mukātaba (a slavewoman who has a contract for freedom and for whom relations with her master are thus illicit).39 No ḥadd sanction would be was due in either case because both defendants would have gained partial ownership of the slavewomen and thus would have had a reasonable basis for believing that sexual relations with each were licit. Ḥabīb al-Aʿẓamī (Beirut: al-Maktab al-Islāmī. 99-101/717-720). al-Khaṭṭāb and ʿAṭāʾ.38 He also said that the same ḥadd punishment is to be avoided by reason of shubha from a man who has sexual relations with a slavewoman whom he purchased with capital supplied by his business partner. ed. al-Muṣannaf fī ʾl-ḥadīth.37 In Iraq. He held.. ʿAbd al-ʿAzīz declared that he would have stoned her if it were not for her ignorance of the law. ed. 306/918) also cites instances of ḥudūd avoidance on the part of the Syrian Umayyad judge Faḍāla b. For example. instead. and so she was eligible for the stoning punishment for zinā. Saʿīd Muḥammad al-Laḥḥām (Beirut: ʿĀlam al-Kutub. ʿAbd al-Razzāq. the Ḥijāz. the maxim found broad application by Sufyān al-Thawrī (d. he commanded her to sell the slave to someone who would remove him far from the vicinity. Wakīʿ (d. who lived in Medina and then in Syria. Muṣannaf (1972). 2001). for instance. 38 39 ʿAbd al-Razzāq. and the other major centers of the Islamic world. Other Early Jurists Sources indicate that the maxim was applied elsewhere in Iraq. avoided determining that there was ḥadd liability for zinā in the case of a woman who married (or had intimate relations with) her slave.B. there are indications that jurists followed practices of ḥudūd avoidance in cases of doubt there as well. ʿUbayd al-Anṣārī. Syria. ʿUmar b. 617. 7:210. Wakīʿ. Akhbār al-quḍāt. for instance. Ibid. 1392/1972). As such. 8:430 (yudraʾ ʿanh al-ḥadd). Similar instances of Awzāʿī’s practices in this regard appear in Ibn Qudāma’s Mughnī and Ibn Ḥazm’s Muḥallā. a contemporary of Abū Ḥanīfa and his associates. ʿAbd al-Razzāq tells us that ʿUmar b. who operated outside of their circle in Iraq and was considered to be a founder of his own school. 45    . There are several other                                                                   37 Though early sources for practices in Mecca and Syria are sparser than those for Medina and Iraq.

If he did consummate the marriage and then was proved to have had intimate relations with another woman. 41 See Mālik b. Muwaṭṭaʾ. if not. Ibn al-Qāsim (d. 241-44. Bashshār ʿAwwād Maʿrūf (Beirut: Dār al-Gharb al-Islāmī. the ḥadd is to be avoided: duriʾa ʿanh al-ḥadd. the act would be fornication and the punishment flogging. Mālik invoked it. Ibn al-Qāsim noted that. often in a way that closely echoed the language of the standard formula. For other instances of Thawrī’s ḥadd-avoidance. 46    . holding that the ḥadd punishment for zinā is to be avoided where a man has sex with a slavewoman without having the full ownership interest that would permit him to do so legally. ed. 1990). who transmitted the version of the Mudawwana in which this story appears. 3:393 (holding that if a man permits his slavewoman to have sex with another man.instances in which Thawrī applied the maxim. told Saḥnūn. the ḥadd is to be avoided: yudraʾ ʿanh al-ḥadd). Yaḥyā al-Laythī. that Mālik did not speak to this precise issue. the act would be adultery and the punishment stoning. the ḥadd punishment is                                                                   40 In many of these cases. Anas. 6:207. narration of Yaḥyā b. ʿAbd al-Razzāq. but that on a related matter had cited the ḥudūd maxim in its popular form (idraʾū ʾl-ḥudūd biʾl-shubahāt) on anonymous authority. by the operation of this maxim. Mālik’s student and the most important jurist in forming early Andalusian Mālikī law. For instance. he avoided imposing the ḥadd punishment on a man who consummated a marriage with a woman who never agreed to the marriage in the first place and where there were no witnesses or any other signs of a valid marriage.40 Medinese jurists also applied the maxim. 191/806). and that if a man has sex with his son or daughter’s slavewoman also. Applying that principle here. Mawsūʿat fiqh Sufyān al-Thawrī (Beirut: Dār al-Nafāʾis. see Muḥammad Rawwās al-Qalʿahjī. even though this is illegal. Muṣannaf (1972). he applied the principle without citing the maxim or language close to it. 1996).41 Another instance of ḥudūd -avoidance concerned the question whether a man incurs ḥadd liabilityfor zinā in a case where he denies that he consummated his marriage despite his having been alone with his wife after the wedding.

175/791).. al-Mudawwana al-kubrā (Beirut: Dār Ṣādir. He received his fiqh training in Mecca and Medina (under Mālik) but subsequently charted his own path. For example.43 However. sometimes revised. ʿAbd Allāh b.g. 44 45 Al-Layth b. Ibid.: Dār Qutayba. a man marrying two sisters or taking on a fifth wife (see Ibn Ḥazm. 8:470. he invokes it in a case of conflicting testimony concerning stolen goods. Shāfiʿī spent time first in the Ḥijāz.42 In Egypt. 7:52-3 (min qibal annā nudriʾ al-ḥudūd biʾl-shubha wa-hādhā aqwā mā yudraʾ bih al-ḥadd). 11:247). his Umm is based on his older work written in Baghdad. and the end of his days in Egypt. 16:276 (used in a similar formula (qad qīla idraʾū ʾl-ḥudūd biʾl-shubahāt) in considering whether grandparents could be held liable for stealing money from their grandchildren). [1961?]). though without citation to its popular form. 1986). was called the “Imām of Egypt” during his lifetime. His application of the ḥudūd maxim may well go back to his earlier opinions in the Ḥijāz— where he studied under Mālik. we also find that Shāfiʿī applies the maxim. and it contains his later..44 Also in Egypt. two saying that the item stolen was a certain garment of one value and the other two saying that it was a different garment of some other value. Aḥmad al-Qurṭubī. because of the presence in each 47    .to be avoided until and unless the accused admits to consummating the marriage or until and unless witnesses can be found to testify to such an admission. Shāfiʿī holds. Aḥmad Badr al-Dīn Ḥassūn (n. in his Kitāb al-Umm. who was highly regarded by Shāfiʿī. n. opinions in the fiqh chapters. He is said to have avoided imposing ḥudūd punishments when a perpetrator was ignorant of the illegality of the crime. 4:260). the two sets of testimony are sufficient to establish that the thief has committed a crime. 1996).). al-Mughnī ʿalā Mukhtaṣar Abī al-Qāsim al-Khiraqī. Kitāb al-Umm. ed. does the ḥadd punishment for theft (hand amputation) apply? On the one hand. If a thief steals and four witnesses testify against him. In such cases. Saʿd (d. 16:236 (yuqāl idraʾū ʾl-ḥudūd biʾl-shubahāt). 43 Muḥammad b. but on the other hand. Muḥammad b. the conflict creates a doubt as to which item was stolen. Saʿd is said to have applied the maxim as well. see also ibid. ʿAbd alMuḥsin al-Turkī and ʿAbd al-Fattāḥ Muḥammad al-Ḥulw (Cairo: Hajr. Idrīs al-Shāfiʿī. the punishment is waived “because we avoid ḥudūd punishments in cases of doubt. he is to pay the lesser of the two values in restitution to the owner. amongst others—or Iraq—where he interacted with prominent members of ahl al-raʾy—both of whom employed the maxim. al-Ḥujja. e. the thief does not get off scot-free. al-Jāmiʿ li-aḥkām al-Qurʾān (Cairo: Dār al-Shaʿb.p. al-Layth b. then Iraq and Yemen.” and this is a “strong” case of doubt. ed. or taking money from the spoils of war to which he was not entitled (see Muwaffaq al-Dīn Ibn Qudāma.d. Muḥallā.45                                                                   42 Saḥnūn.

and the maxim does not appear in the “canonical” version of the letter recorded in al-Sharīf al-Raḍī (d. 406/1015). Nahj al-balāgha. When the woman complained to ʿAlī. Mālik al-Ashtar. while in the last case. 426-45. Fearing the harsh consequences against him. Musnad.In Baghdad some decades later. 128. This source is dubious. That is. 253-54 (fa-udriʾ ʿanh al-ḥadd). At most. it became apparent to her that the man was eligible for the ḥadd sanction. end of the 4th/10th or 5th/11th century).46 It is unclear whether Ibn Ḥanbal regarded this report from the perspective of a ḥadīth scholar or a jurist. letter no. 5:416. See Qummī. which—as we will see—takes on differing degrees of opposition to the ḥudūd maxim (at least as a prophetic ḥadīth). the maxim is attested in the ʿAlid community in Kufa as well. ed. a man gave his wife a slavewoman and then had sex with her. accusing her husband of illicit sexual relations. 46 47 48 Ibn Ḥanbal. the Prophet declined to punish her for having illicit sexual relations given possibility of a lack of voluntariness on her part. ed. One source has it that ʿAlī advised his faithful companion. note 61. In the first cases. Aḥmad b. this indicates that the maxim was known in the circles that the relatively unknown figure Ibn Shuʿba frequented in the 4th/10th or 5th/11th century. 1376): 126-49.47 It is listed in the works of ʿAlī’s judgments collected there in the third century. she fell on her sword—perjuring herself. 48    . and this ambivalence later reveals itself in his school’s traditionist jurisprudence. to follow the wisdom of the ḥudūd maxim. the fact that a man has some ownership interest in the spoils of war exculpates him from the accusation of stealing from property to which he is not entitled at all.48 * * *                                                                                                                                                                                                 case of a doubt as to culpability. Qaḍāyā. 53. In one case. see below. ʿAlī Akbar al-Ghaffārī (Tehran: Maktabat al-Ṣadūq. See Ibn Shuʿba (d. Ṣubḥī al-Ṣāliḥ (Beirut: Dār al-Kitāb al-Lubnānī. in a celebrated letter of investiture and advice upon sending him to be governor of Egypt. 1967). and thereby avoiding the ḥadd punishment. For discussion of the canonical Shīʿī ḥadīth collections. ignorance of the law diminishes culpability for clearly prohibited acts. he thought—like other early ḥadīth scholars—that the saying was of dubious authenticity. retracting the testimony. Ḥanbal cited the maxim. Tuḥaf al-ʿuqūl. In the form of a prophetic ḥadīth. He noted nonetheless that the Prophet had applied the principle to a woman suspected of zinā who claimed she was raped. Finally.

following the                                                                   49 Shāfiʿī. especially. beginning with Ibrāhīm al-Nakhaʿī). but none of them understood it to be a prophetic ḥadīth—at a time when most ḥadīth scholars doubted its prophetic attributions and jurists did not bother to cite any. we would expect him to attribute the maxim to the Prophet if he thought it was a ḥadīth or else to rely on it as an expression of consensus. by noting that there was a material change between early forms of authority to which jurists appealed (where there was no absolute need to cite principles deemed to be Sunna in the form of a prophetic ḥadīth. he would have taken the maxim to express a self-evident or self-authenticating practice reflecting the consensus of common precedent. Rather.49 If his insistence on these bases is taken at face value to be an indispensable feature of his jurisprudence. Numerous reports indicate that there was a widespread practice of ḥudūd avoidance that predated the jurists of the end of the 1st and 2nd centuries of the Hijra. On this account. ed. He instead applied it as a legal maxim grounded in other authority. This is not to signal agreement with Schacht’s assumption that a jurist will use a ḥadīth if he or she knows it. Risāla. It is perhaps on that basis that Shāfiʿī and others avoided ḥudūd punishments in certain situations. Muʾassasat al-Ahrām. during the time when we have firm textual-historical evidence of juristic use of the maxim (that is. 49    . it is to argue precisely the opposite. Several jurists relied on the standard version. perhaps a type of implicit consensus. This is particularly striking in the case of Shāfiʿī. increasing reliance on ḥadīths used to claim or bolster one’s arguments against divergent views and practices. 1988). His use of the maxim without such attribution may be taken as an indication that he did not believe it to be a prophetic ḥadīth.The preceding discussion indicates that the maxim was widely applied in the major regions of the Muslim community where the law was elaborated. whose work of legal theory. emphasizes appeals to textual sources (Qurʾān and ḥadīth. and a later. Muḥammad Nabīl Ghanāyim and ʿAbd al-Ṣabūr Shāhīn (Cairo: Markaz al-Ahrām liʾlTarjama waʾl-Nashr. as well as consensus). al-Risāla. particularly where they were so widely diffused so as to be considered self-evident policies attested by continuous community practice).

“al-Qāḍī al-Nuʿmān and Ismāʿīlī Jurisprudence. For Qāḍī Nuʿmān’s biography and life as a judge in the early Fāṭimid empire. and it usually appeared with new prophetic attribution amongst its proponents. IV. [1407/1986-7]. no. 365/976). this state of affairs changed. 1653 (cited in Ḥusayn b. Muḥammad Taqī al-Nūrī al-Ṭabarsī. this maxim is functioning. 21. Juridical Pragmatism: How Legal Theorists and Ḥadīth Scholars Approached the Backgrowth of Isnāds in the Genre of ʿIlal al-ḥadīth. this fits easily with the idea of a legal maxim in the sense of a formalized substantive canon with deep—but anonymous—roots. ed. in applying the principle. Mustadrak al-Wasāʾil (Muʾassasat Āl al-Bayt liIḥyāʾ al-Turāth. 51 In another realm detailed below. Ibn ʿAdī (d. and Imāmī Shīʿī contemporaries recorded formulations that begin with the standard version: Qāḍī Nuʿmān (d. 458/1066) copied the earlier ḥadīth versions.911)).” in 50    52 . After the traditionist triumph culminating in the 4th and 5th centuries of the Hijra. See Jonathan Brown. 3:330. 1 (2008): 1-41. During the same period. respectively. Dāraquṭnī (d. Daʿāʾim al-Islām. Sunnī.earlier widespread practice. 385/995) and Bayhaqī (d. Shāfiʿī simply says that “we avoid ḥudūd punishments in cases of ambiguity” (emphasis added). we find a prophetic attribution in the work of Ḥanafī jurist Jaṣṣāṣ (d. 363/974).51 As noted. Āṣif b. that of the jurists. [1928?]). 1960). as do legal maxims in other legal spheres. no. Aḥkām al-Qurʾān (Cairo: al-Maṭbaʿa al-Bahiyya. see Ismail K. “Critical Rigor vs. Ismāʿīlī.” Islamic Law and Society 14. 381/9912). as a kind of “superprecedent” for which specific attribution is either unnecessary or uncommon. but the chains had by then acquired prophetic origins. and Ibn Bābawayh (d. Splicing Maxims for a Touch of Class The prophetic attributions begin in the 4th/10th century. the ḥudūd maxim had become the central principle of Islamic criminal law. ʿAlī Aṣghar Fayḍī (Cairo: Dār al-Maʿārif. In other words. 370/981). Poonawala. 18:26.52 The formulation of Qāḍī Nuʿmān and Ibn ʿAdī is of particular interest. indicating that this is an axiomatic. See Qāḍī Nuʿmān. widely circulating principle requiring no attribution. 2:466. By then. If accurate.50 This would explain why.                                                                   50 They may have done so out of a notion that the practice traced back to the Companions and even the Prophet.

” The first part is the standard ḥudūd maxim. al-Kāmil. as the above survey of early traditionists and jurists reveals. We have no contemporaneous reports of it.. one that eliminated its indiscriminate and arbitrary character. There are questionable references to its presence in Ibn ʿAdī’s works. Ibid. 793 (fī juzʾ lah min 51    .” 233 (arguing that the cases she lists where highstatus offenders used the ḥudūd maxim to escape punishment provide the background “context [that] makes sense of Ibn ʿAdī’s variant of the saying … . Several authors cite a work ascribed to Ibn ʿAdī with a simple attribution to Ibn ʿAbbās. I take her to mean that the standard formulation as well as the combined version adduced by Ibn ʿAdī were the new formulations that restricted the maxim from the “culture of indulgence in which every possible means was to be used in order to avoid the punishment” and prevented “Muslims of high social status to [continue] to escape the ḥudūd penalties” on the basis of the “as much as you can” formulation. it seems to combine two different ideas of ḥudūd avoidance and ḥudūd enforcement. Jalāl al-Dīn al-Suyūṭī.At first blush. except as concerns criminal penalties (idraʾū ʾl-ḥudūd biʾl-shubahāt. e. that formula [“as much as you can”] must have been seen as no longer acceptable: ḥudūd had to be taken seriously … . See Badr al-Dīn al-ʿAynī̄ (d. “When Lawful Violence Meets Doubt.g.54 Signifantly. 53 See Fierro. especially when a clever jurist was able to find a ‘hole’ in the law. 20:259. 236.” Ibid. It is doubtful that this maxim existed in this form in the early period. while still allowing for possible ways of escaping the penalty. A new wording was necessary. 755/1451). and we will call the second part the aqīlū (overlook) saying. no. 1996). ed. wa-aqīlū ʾl-kirām ʿatharātihim illā fī ḥadd min ḥudūd Allāh). ʿUmdat al-qārī ([Cairo]: Idārat al-Ṭibāʿa al-Munīriyya. though he does not provide his source.. 1:135. 1998). 117-43. And the combined formulation figures into Fierro’s theory that the maxim emerged as a tool used originally to benefit the elite. 1348/1929-30). 54 The attribution of this saying to Ibn ʿAdī is problematic.53 The Qāḍī Nuʿmān-Ibn ʿAdī formulation goes as follows: “Avoid criminal penalties in cases of doubts or ambiguities and overlook the faults of the nobles. Farhad Daftary (Cambridge: Cambridge University Press.” Fierro also uses this variant as evidence in support of her notion that the “as much as you can” formulation preceded the standard version of the ḥudūd maxim (bi-ʾl-shubahāt): “By the second half of the second/eighth century. many scholars attribute the saying to one of his otherwise unknown works—usually without a transmission chain—and the maxim is not to be found in his book on ḥadīth transmitters. as discussed below. Qāḍī                                                                                                                                                                                                 Mediaeval Ismāʿīlī History and Thought. Jāmiʿ al-aḥādīth (Beirut: Dār al-Fikr. Version 11). where we might expect it. ʿAynī is the earliest reference I have identified and the only one to give a chain of transmission (see Appendix.

975/1567). Dhahabī. 16:324. 314 (same). and application. he mentions in his Fayḍ that ʿAbd al-Razzāq. The absence of this version of the ḥadīth in al-Kāmil is consistent with the fact that no other scholar cites that work for this report and Suyūṭī’s explicit reference to Ibn ʿAdī’s other work (juzʾ). See Yūsuf al-Biqāʿī. both parts of this ḥadīth were in wide circulation as separate sayings. There is some confusion among later scholars about the proper attribution and source of this report. ed. 8:36-37. and ʿAbd al-Raʾūf al-Munāwī. the names of the individual narrators in ʿAynī’s chain). Siyar. Zufar b.v. though Munāwī attributes it to Ibn ʿAdī in his Taysīr when commenting on Suyūṭī’s al-Jamīʿ alṣaghīr. during the same early period surveyed.v. 52    . In addition. As detailed above. Kanz al-ʿummāl (Aleppo: Maktabat al-Turāth al-Islāmī. the Ḥijāz. But my examination of al-Kāmil revealed no such ḥadīth in that book. as no such attribution appears in his Muṣannaf. ed. Muṣṭafā Muḥammad al-Dhahabī ([Cairo]: Dār al-Ḥadīth. al-Fayḍ al-qadīr ([Cairo]: Maktaba wa-Maṭbaʿat Muṣṭafā al-Bābī al-Ḥalabī.” 218.Nuʿmān took his attribution of this version of the ḥadīth to the Prophet from an earlier source that had combined the two different sayings. see also Fierro. al-Taysīr: sharḥ al-jāmiʿ al-ṣaghīr (liʾl-Suyūṭī). two principal versions of the maxim circulated alongside each other during that                                                                                                                                                                                                 ḥadīth ahl Miṣr waʾl-Jazīra ʿan Ibn ʿAbbās). as a “ḥadīth. and elsewhere) during the first three centuries of the Hijra. note 169. whence al-Muttaqī al-Hindī (d.” it had a Kufan pedigree and appeared in the canonical ḥadīth collections of Ibn Mājah and Tirmidhī. “When Lawful Violence Meets Doubt. Recall that. The latter is incorrect if the Ṣanʿānī traditionist ʿAbd al-Razzāq is meant. it circulated widely in juristic circles (including Iraq. 1:156. Hudhayl) (quoting without citing Suyūṭī [above]. Attribution and Circulation: Two Different Circles As for attribution. the editor uses the same language as Suyūṭī except that he interpolates fī ʾlKāmil in place of the source mentioned by Suyūṭī. we know that the ḥudūd maxim in all its versions was a nonprophetic saying attributed to Companions or adduced anonymously. Muʿjam aḥādīth ḍuʿafāʾ al-rijāl min Kitāb al-Kāmil (Beirut: Dār al-Fikr. 2:142(1). 1969?). no. note 65. note 33 (noting that her search for this ḥadīth in al-Kāmil was inconclusive). As a maxim. al-Bayān waʾltaḥṣīl. no. For instance. note 2 (s.. ed. also: editor’s note that akhrajah Ibn ʿAdī fī juzʾ lah ʿan Ibn ʿAbbās marfūʿan biʾl-lafẓ). 5:309. See Muḥammad Ḥasan Ḍayf Allāh. See the editor’s note in Ibn Rushd al-Jadd. rather than Ibn ʿAdī. narrates this tradition on the authority of Ibn ʿAbbās. But the two were quite distinct in attribution.55 And of equal significance is the fact that. 55 See below. one commentator notes that this version of the tradition is in Ibn ʿAdī’s Kāmil. 2000). 1964). circulation.972 (same). Ibn Rushd’s editor seems to be quoting Suyūṭī’s reference to Ibn ʿAdī’s work mentioned in alJamīʿ al-ṣaghīr (see above). 1988) (s. A. 12. 1984). Muḥammad Ḥajjī (Beirut: Dār al-Gharb al-Islamī.

are recorded with four different endings in Ibn Ḥanbal.period. Daʿāʾim. Nasāʾī. none of which accord easily with their records concerning the source of the ḥudūd maxim. usually alongside other Ḥijāzī sayings calling on Muslims                                                                   56 The most common versions of the aqīlū saying (aqīlū dhawī ʾl-hayaʾāt …). the chains of the aqīlū saying indicate a circulation in the Ḥijāz (Mecca.58 In both contexts. though with different versions among the two camps of traditionists and jurists. Abī Bakr and/or his father Abū Bakr b.56 As for Shīʿī sources. The less typical version is the one that appears in the second part of this ḥadīth (aqīlū ʾl-kirām ʿatharātihim …). It is also a source of Imāmī Shīʿī ḥadīth. no. Nasāʾī includes two other versions with the same chain. Circulation and citation of the two statements are quite different as well. 11:534. Ṭāʾif). ʿAmr b. See Wilferd Madelung. ʿAmr b.. Ḥazm. “The Sources of Ismāʿīlī Law. at 29. 21.” Journal of Near Eastern Studies 35 (1976): 29-40. no. then spreading out from Abū Bakr or his son). Whereas the transmitters of the ḥudūd maxim indicate a Kufan origin or circulation. 58 For example. Ḥazm or one of his sons. 57 Daʿāʾim is the most authoritative compendium of law for Ṭayyibī Ismāʿīlīs.911 (citing Qāḍī Nuʿmān. Ibn Rāhawayh. 53    .e. see also Ṭabarsī. Abū Dāwūd. Medina. Wasāʾil. What about the aqīlū saying? Sunnī and Shīʿī ḥadīth literature each present largely uniform views of the source of the aqīlū saying. 1653). but other Shīʿī ḥadīth sources do. and Dāraquṭnī. see al-Ḥurr al-ʿĀmilī. Qāḍī Nuʿmān does not record the saying alone. wa-awmaʾa bi-yadih kaʾannah bi-hā yaẓull shayʿan). it appears only in a few collections. In early Sunnī ḥadīth collections. Bayhaqī. Amongst Sunnīs. the ḥudūd maxim and the aqīlū saying seem to have circulated amongst different groups of ḥadīth scholars and appear in completely different sets of canonical ḥadīth collections. via ʿĀʾisha—ʿAmra—Muḥammad b. The notable point here is that all versions of the aqīlū ḥadīth trace back to the Prophet via ʿĀʾisha—…—Abū Bakr b. 3 (ajīzū [or aqīlū] li-ahl al-maʿrūf ʿatharātihim waʾghfirū lahum fa-in kaffa ʾllāh ʿazza wa-jalla ʿalayhim hākadhā.57 attributing it to Jaʿfar al-Ṣādiq rather than to the Prophet. Mustadrak al-Wasāʾil. no. ʿAmr b. the chains for the aqīlū saying are wholly different from those of the ḥudūd maxim and from the sparse chains adduced for the combined version at issue. 18:26. the aqīlū saying originates with the Prophet via ʿĀʾisha—Abū Bakr b. Ibn Ḥibbān. as Qāḍī Nuʿmān recorded traditions attributed to the Imām Jaʿfar al-Ṣādiq and as some Imāmī scholars counted Qāḍī Nuʿmān as one of their own. Ḥazm or one of his close descendants (i.

al-Ḥākim al-Naysābūrī. 18:26. Musnad.627-79. Wasāʾil alShīʿa. ʿAbd al-Ghafūr b. 5:74). al-Muʿjam al-awsaṭ. ed. 1407/1987). 2008). as a valid principle of law. 17. see Badr al-Dīn al-ʿAynī (d. see Ibn Abī Jumhūr al-Aḥsāʾī (d. which draws on mostly Kufan ḥadīths reported on the authority of scholars in Qum. no. 385/995). Mustadrak al-Wasāʾil. 4953.). 1:296. no. ed. See also Ṭabarsī. Versions of the ḥudūd maxim appear in Ibn Bābawayh’s collection. 360/970).60 Neither appears in Bukhārī or Muslim.61 But neither he nor any other collector of canonical Shīʿī ḥadīth records the aqīlū saying. 1995). Mujtabā al-Arāqī (Qum: Maṭbaʿat Sayyid al-Shuhadāʾ. 975/1567). in which case adjudication and/or punishment become mandatory. ʿIwaḍ Allāh b. no. see also Abū Dāwūd al-Sijistānī. no. Dāraquṭnī (d. al-Mustadrak ʿalā ʾl-Ṣaḥīḥayn (Cairo: Dār al-Ḥaramayn liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ. ed.611. Sunan (Beirut: Muʾassasat al-Risāla. Bayhaqī.912 (listing the ḥudūd maxim as it has been popularized. Mohammad Mahdī al-Sharīf (Beirut: Dār al-Kutub al-ʿIlmiyya. 241/855). 1992). trans. ed. 3:277. Muḥammad and Abū al-Faḍl ʿAbd al-Muḥsin b. 5:121-24. Sunan. 18. no. Abū Maʿādh Ṭāriq b. Shuʿayb al-Arnaʾūṭ and Ḥusayn Asad. 90.62 The two maxims appear                                                                   59 Especially the “taʿāfaw saying. 8:575. Jāmiʿ aḥādīth al-Shīʿa (Qum: Maṭbaʿat al-Mihr. Abū ʾl-Qāsim al-Ṭabarānī. 1:236. no. ʿAlī Akbar al-Ghaffārī (Qum: Jamāʿat al-Mudarrisīn fī ʾlḤawza al-ʿIlmiyya. 3:207. arranged by ʿAlāʾ al-Dīn b. Muṣannaf (1972). 2004). 6:181. For other contemporaneous sources and references through the 5th/11th century. al-Muttaqī alHindī (d. Sunan. 1994). al-Sunan al-kubrā. Ḥasan ʿAbd al-Munʿim al-Shalabī (Beirut: Muʾassasat al-Risāla. 2001). 7331-32. ʿAwālī al-laʾālī. 4375 (English translation in Sunan Abu Dawud.937 (Arabic text: taʿāfaw fī-mā baynakum qabla an taʾtūnī fa-mā balaghanī min ḥadd fa-qad wajaba). al-Ḥurr al-ʿĀmilī. overlook the faults of fellow Muslims generally. no. nos. Abū Yaʿlā (d. 6:210. 7253-58. Ibn Ḥanbal (d. Ṭabarānī (d. Ibn Bābawayh. 8:579-80. 755/1451). 3:137. no. nos. The Shīʿī evidence likewise suggests different realms of circulation. attributed to ʿAlī without an isnād (from Ibn Bābawayh’s Muqniʿ). For inclusion of the saying in later collections. Kanz al-ʿummāl. 62 61 The aqīlū saying appears elsewhere in the Shīʿī ḥadīth corpus. 458/1066). 1997). Ṣaḥīḥ. 6:468-9. 60 For the two citations in the Sunnī canonical collections. 8236.59 Whereas the ḥadīth versions of the ḥudūd maxim appear in Ibn Mājah and Tirmidhī. 7:302. al-Muʿjam al-awsaṭ. 5774. Sunan. late 9th/15th century). Kāfī]). 23:328 (citing Ibn Bābawayh. 1984-94). records a version of the saying (citing Furūʿ [= Kulaynī. 1996). see Isḥāq b. Nasāʾī. 2:567. 5:74. 4:537. 10:229. no. For later sources. 3:137. 354/965). 1983-1985). 3139. Ḥusayn Salīm Asad (Damascus: Dār al-Maʾmūn liʾl-Turāth. Musnad. Musnad. Kitāb man lā yaḥḍuruhu ʾl-faqīh. 307/918). 6:54. ʿUmdat al-qārī. Muḥammad ʿAbd al-ʿAzīz al-Khālidī (Beirut: Dār al-Kutub al-ʿIlmiyya. 7562. see Sunan Abu Dawud. 54    . 238/853). Ibn Ḥibbān (d. the aqīlū saying appears in Abū Dāwūd and Nasāʾī. ed. For example. 7:12. Bayhaqī (d. no. See ʿAbd al-Razzāq. 6212. no. ed. Sunan. This suggests that Qummī scholars at that time did not regard it as a ḥadīth or more pointedly. ed. no. 4:53. Faqīh). 1412/1990-1).” which encourages people to overlook each other’s faults so long as offenses have not been brought before the court. ʿAbd al-Ḥaqq al-Balūshī (Medina: Maktabat al-Īmān. 17. 4376 (for an English translation. 21. Balabān al-Fārisī (Beirut: Muʾassasat al-Risāla. 14:256. 11:534. nos. Ibrāhīm al-Ḥusaynī (Cairo: Dār al-Ḥaramayn. ca. Ḥusayn alṬabāṭabāʾī al-Burūjirdī. see Abū Dāwūd. Nasāʾī. Rāhawayh (d. 8:363-4.

The standard. or Sunnī sources—or some combination thereof.63 The appearance of the aqīlū maxim in the Ḥijāz does nothing to support an idea of early circulation of the double maxim. though there is no ḥudūd maxim in his short didactic poem. over other ʿAlids. “al-Qāḍī al-Nuʿmān. “Sources of Ismāʿīlī Law. a simple version of the ḥudūd maxim appears in Qāḍī Nuʿmān’s al-Iqtiṣār. at least in the extant section on ritual law. and locates them in the late second and early third centuries in sources circulating outside of Qum. where he simply reports at the end of the chapter on ḥudūd that punishments are to be avoided in cases of doubt or ambiguity (wa-yudraʾ al-ḥadd biʾl-shubha . Īḍāḥ. against the Zaydī tendency. As for Sunnī sources—specifically the Mālikī and Ḥanafī schools in which Qāḍī Nuʿmān is believed to have started out—we know that they regularly invoked the ḥudūd 55  65   . Madelung. Qāḍī Nuʿmān often splices together ḥadīths of different provenance or omits chains altogether to support a particular legal proposition.. The Daʿāʾim is an abridged law manual rather than a ḥadīth work designed to preserve legal rules in the form of authentic prophetic ḥadīths with their chains. we are initially uncertain whether he gets the maxim from Sunnī or other Shīʿī sources. Muḥammad Kāẓim Raḥmatī (Beirut: Muʾassasat al-Aʿlamī liʾl Maṭbūʿāt. In addition to the compound version in the Daʿāʾim.65 In fact. plus the complete absence of the ḥadīth in joint form in the first three centuries of the Islamic period. if not compound. 2007) (the surviving fragments of ḥadīths on ritual law).” 29 (noting the Imāmī and Zaydī components). For this reason. ed. Kitāb al-Īḍāḥ is mostly lost. which draws on a collection of reports from not only Kufa.. from which he omitted transmission chains. or simply formulates it himself … . as noted. cf. ʿĀrif Tāmir (Beirut: Dār al-Aḍwāʾ. “Sources of Ismāʿīlī Law. 128 (noting that he added more Zaydī and Mālikī components to the Daʿāʾim as well).. Madelung reconstructed the sources from which Qāḍī Nuʿmān drew. idem. version thus probably appeared in al-Īḍāḥ and his subsequent abridgments of that work (from which all but the ritual law section is lost). 64 Madelung. al-Muntakhab. ed. but from the surviving portion.).” 121. only in Qāḍī Nuʿmān’s Daʿāʾim. He concludes that the work was a compromise between Imāmī and Zaydī law—materially based on authoritative sources of both but. See Qāḍī Nuʿmān. especially that of Jaʿfar al-Ṣādiq.together during that time in the Shīʿī sources. 32. emphasizing the authority of the Imāms. but also the Ḥijāz. See also Poonawala. The question remains whether Qāḍī Nuʿmān’s citation of the ḥudūd maxim was derived from Imāmī. Zaydī.”). 9-10 (describing his Īḍāḥ). “Sources of Ismāʿīlī Law. Without transmission chains in any of his surviving works. which gathered—among other sayings—ḥadīth attributed to the Prophet’s family together with their transmission chains. a                                                                   63 Qāḍī Nuʿmān extracted the reports in Daʿāʾim. mostly from his massive work of law-related ḥadīth. Kitāb al-Īḍāḥ. 108. Ibid.” 29 (“He usually quotes only a single tradition on any question in support of actual doctrine. Kitāb alIqtiṣār. together indicate that it is quite possible that he or someone from whom he copied his ḥadīths spliced these separate sayings together too. Madelung. the fact that he draws on early ḥadīth collections from Iraq (where the ḥudūd maxim was circulating as a ḥadīth) and the Ḥijāz (where the aqīlū maxim was found).” 30. 1996).64 Here.

See Zayd b.. the maxim is in a work collecting his teachings. also as here. 1405 (citations to the maxim. always through the same chain of transmission. 248/869). Kitāb Raʾb al-ṣadʿ (Beirut 1990). the same one noted in our copy of Aḥmad b. 1990). and attribute them separately to the Prophet and as if through an independent chain of transmission. 122/740). While this suggests. and particularly Shawkānī’s appropriation of Sunnī ḥadīths (as he does here with the ḥudūd maxim). ʿAlī al-Shawkānī’s Nayl al-awṭār. that Qāḍī Nuʿmān may have been familiar with the ḥudūd maxim through those avenues. 3:1390-1405 (preserving Aḥmad b. as here. Yemen: Maktabat al-Irshād. 1401/1981). with Muḥammad b. there is a more direct link between Qāḍī Nuʿmān’s version of the maxim and a version known in Zaydī circles. “A Reconsideration of al-Qāḍī alNuʿmān’s ‘Madhhab. see Bernard Haykel.] idraʾū ʾl-ḥudūd biʾl-shubahāt wa-aqīlū ʾl-kirām ʿatharātihim illā min ḥadd. See also ʿAlī b. 2003). “al-Qāḍī al-Nuʿmān. 329/941) and Ṭūsī (d. 3 (1974): 572-9. we know that the simple version of the ḥudūd maxim was circulating in the Zaydī community at a point contemporary to Qāḍī Nuʿmān. during the first Fāṭimid caliph al-Mahdī’s reign) and/or Daʿāʾim (around 349/960). ʿAlī (d. 416. and Ṣanʿānī. collected and commented upon by Muḥammad b. a late 2nd/8th century Kufan transmitter of ḥadīth from Jaʿfar al-Ṣādiq [as appears in the above chain] and Mūsā al-Kāẓim with strong Shīʿī leanings. Tradition and Survival: A Bibliographical Survey of Early Shīʿite Literature (Oxford: Oneworld. 2003). Zayd (d. Aḥmad b.’” Bulletin of Oriental and African Studies 37. The maxim was cited by Zaydism’s eponymous school founder. 840/1437). Muntakhab (Ṣanʿāʾ: Dār al-Ḥikma al-Yamāniyya. according to his grandson. spliced together and attributed to the Prophet: qāla Rasūl Allāh [s. eds. 1993). after 399/921). ʿĪsā b. and that this work appears to have been quoted extensively in Aḥmad b. See Hossein Modarressi. Isḥāq al-Baghdādī (Ṣanʿāʾ. includes it in his ḥadīth compilation. inasmuch as we know that he copied from written Shīʿī sources for his works on law. 211. because the sources informing them as well as the versions that they cited differed considerably. On Qāḍī Nuʿmān’s religious and legal affiliations. ʿAlī (d. Naṣr—Khālid—Ḥuṣayn [b. In other words.w. a look at the Shīʿī sources shows where he got his extended version of it.) In principle. it was already a double-maxim. From the chain (Muḥammad—Ḥusayn b. Sulaymān alKūfī (d. 3:1390. The Imāmīs of course have it. 298/911)—although rejected by later Zaydīs—appealed to it during his lifetime. As a general matter. Mukhāriq)]. New York: Cambridge University Press. Kulaynī (d. Naṣr—Khālid—Ḥuṣayn (b. Compare Ibn al-Murtaḍā (d. 381/991-2). From the Amālī. as the Imām al-Hādī ilā ʾl-Ḥaqq (d. (The other compilers of the Imāmī ḥadīth canon. al-Sayyid Muḥammad al-Muʾayyad al-Ḥusnī?. in that work. Mukhāriq]—Jaʿfar [al-Ṣādiq]—his father [Muḥammad al-Bāqir]). 297-304 (kitāb al-ḥudūd). Ibn Bābawayh (d. Amālī (also called Kitāb al-ʿUlūm). Furthermore. see Ismail K. and “conversion” from Sunnism to Ismāʿīlī Shīʿism.) 56    . ed. Kitāb al-Azhār and al-Baḥr al-zakhkhār in addition to al-Nāṭiq biʾl-Ḥaqq’s Kitāb al-Taḥrīr (no citations to the maxim in any of these works). the maxim was not compound at that time and it did not appear as a Prophetic ḥadīth in most Zaydī works until the modern period. 1393. 1999). authored a work called Kitāb Jāmiʿ al-ʿilm. 126. Muḥammad Ḥallāq and ʿIzz al-Dīn Khaṭṭāb (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī.e. though without citing it as a ḥadīth and not in compound form. Qāḍī Nuʿmān and Ibn Bābawayh could have gotten the ḥudūd maxim from a common source available to both of them at the time the former wrote al-Īḍāḥ (i. i. Though it does not appear in the Musnad collecting ḥadīths attributed to Zayd. 413. Kitāb Raʾb al-ṣadʿ. Musnad (also called al-Majmūʿ al-fiqhī ). Manṣūr b. Ismāʿīl al-Ṣanʿānī. see Poonawala.. It seems to have been not uncommon for ḥadīths of similar topics like these to have appeared side by side in early notebooks and for later copyists to divide the runtogther ḥadīths sometimes incorrectly.                                                                                                                                                                                                maxim during this time in Ifrīqiya and elsewhere. ʿĪsā’s Amālī. we see where Qāḍī Nuʿmān copied his long version of the maxim. But this was likely not the case. he copied from an earlier Zaydī work where the ḥadīths were already conjoined—perhaps inadvertently—and attributed to the Prophet.a. Zayd b. at most. 275-76 (noting that Abū Junāda al-Salūlī [Ḥuṣayn in the above chain].e. Yazīd al-Murādī al-Kūfī ([Yemen]: Yūsuf b. ʿĪsā’s Amālī. Instead. though not as a ḥadīth). do not. that chain of transmitters [Ḥusayn b. as Qāḍī Nuʿmān’s contemporary. ʿAbd al-ʿAzīz b. we know that the ḥadīth was copied from a book. 122/740). (Thanks are due to Najam Haider for directing me to several Zaydī sources. 460/1067). Revival and Reform in Islam: The Legacy of Muḥammad al-Shawkānī (Cambridge.” 121. ʿĪsā’s Amālī referred to ḥadīths taken from this work). Qāḍī Nuʿmān did not do the splicing. On modern Zaydīs. See Muḥammad b. Poonawala. between 297/909 and 322/934. On the dating of these texts. with commentary). 7:109.

where there is a general lack of overlap between the ḥudūd maxim and the aqīlū saying. Mālik. and most others who wrote or recorded juristic opinions during that period. records it but not the ḥudūd maxim. “Ḥadīth in the Reponses of Isḥāq b.66 But they rarely.67 This saying is missing in the works of Ibn Abī Shayba. jurists of the early period regularly cited and applied the ḥudūd maxim. On Ibn Rāhawayh’s jurisprudence. Ḥanbal (another traditionist-jurist who postdates the other major Sunnī school-“founding” jurists by some decades) records both maxims. having grappled with but overcome the incompatibility problems between them. ʿAmr b. 1993).closer examination of early Shīʿī sources demonstrates that this is indeed most probably what happened. 407-31 (noting that. Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh (Austin: University of Texas Press. See above section on the early jurists. Musnad. 1-59 (introduction with a detailed biography of Ibn Rāhawayh). 238/853). but he and other jurists applied it in forms that supported enforcing rather than avoiding ḥudūd laws. 57    . Ḥazm. esp. in his responses to specific questions (masāʾil). record and show applications of the ḥudūd-avoidance ḥadīth but not the aqīlū saying. Ibn Rāhawayh (d. a Medinese judge and ḥadīth scholar under ʿUmar II. Abū Bakr b. Rāhawayh wa-kitābuh al-Musnad (Medina: Maktabat al-Īmān. without the ḥudūd exception). ʿAbd al-Ghafūr b. He rejects the prophetic attribution of the ḥudūd-avoidance ḥadīth and is ambivalent about                                                                   66 Jurists like Shāfiʿī. Rāhwayh. al-Imām Isḥāq b. cf. cited or applied the aqīlū maxim to validate the practice of avoiding criminal sanctions when it came to the elite. Shāfiʿī. Abū Yūsuf. 3 (2001). Aḥmad b. ʿAbd al-Ḥaqq al-Balūshī. Abū Yūsuf and Mālik. in addition to traditionist compilers of law-related ḥadīth like ʿAbd al-Razzāq and Ibn Abī Shayba. see Susan Spectorsky. One of the few traditionist-jurists of the period to mention the aqīlū saying. eadem.. if ever.68 Exceptionally. 68 67 Ibn Rāhawayh. 2:567 (aqīlū dhawī ʾl-hayaʾāt zallātihim. is said to have promulgated the ḥadīth in Medina.” Islamic Law and Society 8. As noted above. The same may have occurred in the Sunnī context. Ibn Rāhawayh relied more on scholarly opinion and Companion sayings and less on prophetic ḥadīths than a Schachtian view of traditionists and of Shāfiʿī’s influence initially would lead one to surmise). ʿAbd al-Razzāq. trans. Muḥammad b. 1990) (expanded biography of Ibn Rāhawayh).

The second set of terms (kirām. as do Ibn ʿAdī and Qāḍī Nuʿmān and most others who quote the ḥudūd maxim in addition to the aqīlū saying. loosely translating as “those of high station”) is perhaps most interesting. dhilla. For an excellent discussion of class distinctions in Islamic history (through the 8th/14th century). see generally Louise Marlow.70 The relevant difference among them is the occasional inclusion or exclusion of a “ḥudūd exception. Kanz al-ʿummāl. dhawū ʾl-hayaʾāt or hayʾa. ajīzū. aqīlū. [1966]).71 As such. 1997). 12. 58    . For such serious crimes and moral offenses. dhawū ʾl-hayaʾāt. As with the ḥudūd-avoidance maxim. 71 70 The version with the ḥudūd exception appears more widespread. or ihtabalū. there are many versions of the aqīlū saying. dhawū ʾl-sakhāʾ. while Ibn Rāhawayh does not mention the ḥudūd exception. Both versions. See above. Ibn Ḥanbal includes it.whether ḥudūd punishments ever could or should be avoided. Dāraquṭnī.” which stipulates that any lenient stance toward the minor faults or misdemeanors of high status members of society is inapt when it comes to ḥudūd crimes. appear in Nasāʾī and Ibn Rāhawayh. these versions with the ḥudūd exception tend toward ḥudūd enforcement rather than ḥudūd avoidance. or at least some of his later followers understood him to have regarded ḥadd avoidance in that case as a one-time exception rather than a prospective rule or general principle of ḥudūd laws..975-84. as it raises questions about just which class of people the maxim is designed to encompass. 12. Worth noting is that. While both the ḥudūd maxim                                                                   69 As we saw above. Ibn Ḥanbal acknowledged the report that the Prophet avoided a ḥadd punishment in at least one instance. Abū Dāwūd. (2) the term used to refer to those of high status is alternatively al-kirām. For a list of several versions. Khulāṣat al-athar fī aʿyān al-qarn al-hādī ʿashar (Beirut: Maktabat Khayyāṭ. and Ibn ʿAdī only have the version with the ḥudūd exception. as represented in one of the ḥadīth formulations of the maxim of which Ibn Ḥanbal was aware. (3) the terms used for “faults” or “misdemeanors” include ʿatharātihim. 4:422—though this author or the teacher who related it to him apparently copied or paraphrased the term incorrectly). Ṭabarānī. he seemed to have restricted the scope of the practice. Hierarchy and Egalitarianism in Islamic Thought (Cambridge.69 But he supports a particular version of the aqīlū saying that is at odds with the lenient one cited by Ibn Rāhawayh. the ḥudūd exception emphasizes that those of high status are subject to punishment like anyone else. as follows: (1) the term used for “overlook” is variously tajāwazū. Faḍl Allāh al-Muḥibbī. There are three other differences in terminology. zallātihim. and even dhawū ʾl-buyūt (as in Muḥammad Amīn b. see al-Muttaqī alHindī. etc. nos. As such. Bayhaqī. dhū ʾl-murūʾa/dhawū ʾl-murūʾāt. but he rejected the notion that his act had a more general application. Ibn Ḥanbal.987-88. with and without the ḥudūd exception. note 60. NY: Cambridge University Press.

6:414 (citing and commenting on a citation to the saying as a ḥadīth by the 5th/11th century Ḥanbalī luminary. B. without the ḥudūd exception. To support her point. Egypt: Dār al-Wafāʾ liʾl-Ṭibāʿa waʾl-Nashr waʾlTawzīʿ. In the form of a ḥadīth. See the collection of his fiqh opinions: Jāmiʿ al-fiqh. no. as had Ibn Ḥanbal. See. Hierarchy and Egalitarianism. though the standard form circulated in centers outside of Abū Ḥanīfa’s circle. in later Ḥanbalī literature. Though other scholars disagreed with him about the ḥudūd maxim. ʿAbd al-Majīd Qaṭāmish (Mecca: Jāmiʿat al-Malik ʿAbd al-ʿAzīz. note 78. Enter the notion of a “touch of class. Ibn ʿĀqil: aqīlū dhawī ʾl-hayaʾāt ʿatharātihim illā ʾl-ḥudūd). and Medina.” Recall Fierro’s suggestion that the two versions of the ḥudūd maxim reflected a historical trend of favoring the social elite in criminal proceedings. 1980).and the aqīlū saying were known by his time. ed. we are now in a better position to revisit theories about the provenance and social context of the ḥudūd maxim. such as Baghdad. when Ibn Qayyim al-Jawziyya cites the aqīlū saying with its ḥudūd exception. she provides many examples of how the maxim was indeed used and abused to favor the rich and powerful. Legal-Theoretical Rejection of Class-Based Distinctions With this survey. Questions of dating linked to the socio-legal import of the maxims are more complicated.g.. As an opponent of gratuitous ḥudūd avoidance. Marlow.72 Ibn Ḥanbal’s treatment suggests that the lack of overlap between them amongst the ḥadīth collections and juristic works was not fortuitous. Abū ʿUbayd al-Qāsim b. it was certainly of Kufan stock. indicating circulation of this same saying in the pre-Islamic period. Sallām (d.73 while the ḥudūd maxim figures prominently. e. perhaps predictably. most came to signal agreement with his sentiment against the aqīlū saying. Egypt. 27-28. See also Marlow’s discussion and the citations therein. ed. 1:52. 68. 1428/2007). 224/838). It also appears regularly in compilations of sayings and proverbs of the time. Accordingly. The historical point                                                                   72 We have already seen that the aqīlū saying was scattered through the ḥadīth literature. notably. he found the ḥudūd maxim spurious and the aqīlū saying wholly unacceptable without a ḥudūd exception. Kitāb al-Amthāl. 59    73 . that saying virtually disappears from subsequent legal literature. An exception appears. Yusrī̄ al-Sayyid Muḥammad (al-Manṣūra.

236 (noting traditions forbidding Muslims from interceding on behalf of one’s [high-status] peers). and its more exacting potential may indeed explain why jurists picked up and standardized the shubahāt version over the other as. who were concerned that the law be applied in an egalitarian way. but circulate in different scholarly circles. See below. Indeed. and. she argues. Ibn Mājah. of the two forms she has highlighted. See Fierro. signaling a preference for the more legalistic phrase.outlining this social context is not to be denied. arguably (at least for the likes of Ibn Ḥazm). as we will see. In noting the differences between the two forms of the maxim. both ḥadīth scholars and. At the same time. 121. her intervention may explain why the standard version becomes central in the later juristic literature. gradually.” such as Ibn Ḥanbal. and in calling attention to the legalistic tenor of the shubahāt version. if not necessarily to support her hypothesis. in an attempt to curtail and obscure the maxim’s arbitrary elite-favoring aspects with objective standards that would avoid the censure of the “pious opposition. But this is not to say that shubha was a well-defined technical term during this period (the sources suggest that it was not) or that the standard juristic version itself came later (the sources suggest that it did not). More importantly. This view of the technical nature of the term shubahāt bears out in the later sources.                                                                   74 Fierro is suggesting that shubahāt is more of a technical term and thus more limited than mā ʾstaṭaʿtum. they elaborated the concept and contours of shubha. as I hope to have demonstrated here. both versions are contemporaneous to one another. Yet it is questionable whether this trend can support her associated argument about dating.” 227. notes 77. which emerged as a response to the “pious opposition. the shubahāt version provides a framework no more or less arbitrary than any other version of the maxim during the period in question (the first two to three centuries). “When Lawful Violence Meets Doubt. and Tirmidhī (and later Ibn Ḥazm). 60    . the vague phrase “as much as you can” preceded the more specific phrase “doubts and ambiguities (shubahāt). as I argue elsewhere.”74 The distinction made by Fierro is an important one.” The latter replaced the former. She argues that. She posits that the latter preceded the former. the elaboration of shubha comes later: jurists who invoke it do not dress it with any marked precision until the fourth and fifth centuries. jurists graft a prophetic attribution onto the standard version in the later period.

but of genre. did not regard their formulation as prophetic in origin. Having established that genre rather than sequence better describes the differences between basic versions of the ḥudūd maxim. though the wording was not authoritative. Our examination of the first three centuries of ḥadīth and legal literature revealed that the ḥadīth versions and the standard version of the ḥudūd maxim circulated in two completely different arenas. they cited and applied the ḥudūd maxim as a substantive principle of criminal law that drew on earlier precedent.The sources indicate that the differences in the form of the maxim in the early period were a matter not of sequence. Ḥadīth scholars concerned with one set of criteria for recording traditions included in their collections a set of reports different from the maxim used by jurists interested in using another set of criteria for expounding law. and others cited it as axiomatic and repeated it in a standard form. which did not meet their criteria for ḥadīth reliability. meanwhile legal scholars consistently cited the standard version when articulating and applying the law. The jurists. what of the other versions that combine it with the aqīlū saying? The existence of this version in Ibn ʿAdī’s work. still. Fierro suggests. While the aqīlū saying was as 61    . Shāfiʿī. Here is where timing does come into play. ḥadīth scholars cited the various versions of the maxim but never mentioned the standard version. the precedent—as expressed in the maxims—was. Thus. Mālik. This practice clarifies an important feature of the early legal system. Both camps knew of both versions. when Ibrāhīm al-Nakhaʿī. In other words. however. simultaneously. In this way. provides corroborating support for the historical trend of favoring the elite in criminal laws. Abū Yūsuf. the ḥudūd maxim reflected a settled legal principle even as early as the late 1st/7th or 2nd/8th century.

and it certainly was not appended to the ḥudūd maxim as a single saying in the ḥadīth context. It came later. The stories about Zufar and Abū Yūsuf are unavailing. The aqīlū saying was attached to the ḥudūd maxim after the principle of mandatory ḥudūd enforcement across-the-board had won out. whereas the “arbitrary” and “objective” versions of the ḥudūd maxim circulated side-by-side in the early period (through the 3rd/9th century). at least not primarily in order to favor the upper classes. It may be that he and his cohorts emphasized the ḥudūd exception precisely to curb elite privilege in applications of ḥudūd laws. the widespread aqīlū saying was disregarded amongst jurists in the ḥudūd context at that time. the addition carried a ḥudūd exception designed to underscore. In sum. Remember that in his rebuke of 62    . through the splicing together of these two different sayings circulating in two different regions. was the prescriptive value of the aqīlū saying intended to avert ḥudūd punishments from those of high social status? Perhaps so without the ḥudūd exception. It is doubtful then that elite Ḥanafī jurists whose social peers stood to benefit from relaxed ḥudūd laws were responsible for circulating the standard (or combined) version of the ḥudūd maxim. the combined version attributed to Ibn ʿAdī and Qāḍī Nuʿmān was not. We have seen that Ibn Ḥanbal’s version of the aqīlū saying co-opts a known saying that reflected societal norms of privileging the elite. not subvert. but emphatically not with it. the principle that the elite were not exempt from criminal liability. but makes clear that their privilege does not exempt them from ḥudūd liability. Additionally.old as the ḥudūd maxim. as indicated by Ibn Ḥanbal’s reference to both. even if the two sayings were known in the same region at some point at least in the mid-3rd/9th century.

she emphasizes that the maxim likely emerged from and was easily abused by the elite in practice. non-elite new converts who lacked high social status). and Shīʿa— who accepted the authority of the maxim regardless of its status as a prophetic ḥadīth and also displayed sensitivities to abuse of the maxim.g. which does adduce a prophetic attribution.75 All this notwithstanding. it is not clear that Fierro is suggesting that the maxims were intended to benefit the elite exclusively. as the many examples Fierro adduces show. comes from a 4th century source—by which time the maxim had come to be regarded as a prophetic ḥadīth. Shāfiʿīs. 63    .Zufar. But such preferential treatments likely incensed ḥudūd maxim proponents—amongst the Ḥanafīs. It is important not to conflate the practice with the theory of the maxim in considering questions of provenance and juristic conceptions of the law. ʿAbd al-Wāḥid does not claim that Zufar attributed the maxim to the Prophet. as Fierro shows. criminal law application was often at odds with theory. who wanted more principled applications of the law based on authentic traditions.. The story about Abū Yūsuf. They labored to curb social and political abuses too by defining the proper contours and scope of the maxim— sometimes with the effect of critiquing the overuse of the maxim. rather. and opposed the maxim on grounds of authenticity and coherence. it is doubtless true—at least in the literary memory of the Muslim historians—that some jurists used the maxim to benefit the elite. In practice. the cases cited above. The theory was one of consistent ḥudūd avoidance following authoritative practices                                                                   75 E. She well describes the social context that no doubt rankled jurists like Ibn Ḥanbal and Ibn Ḥazm. To be sure. notes 37-40 (indicating some instances where the maxim was used to favor the uneducated. the several examples from early legal sources applying the maxim to the underprivileged and non-scholarly classes show that this principle was not one meant just for the elite. Moreover. Mālikīs. but more often objecting to its underuse.

Muḥammad Ḥajjī (Beirut: Dār al-Gharb al-Islamī.” Attempts to flatten class distinctions in prosecutions thus later appeared in the form of the modified aqīlū saying appended to the original ḥudūd maxim. Shāfiʿī. The Ḥudūd Maxim amongst Later Jurists A. reported a case in which a man suffering from extreme hunger sold his wife to another man for funds. ed. V. Muḥammad b. hierarchy took hold in criminal and other areas of law early on. Mālikī. See Ibn Rushd al-Jadd (d. subsequently. as both a precedential ḥadīth-text and a central maxim of Islamic criminal law. and this led to exaggerated attempts to avoid criminal sanctions in the laws on the books through a robust “jurisprudence of doubt. From the 4th century on. The maxim appears elsewhere in sources that suggest even earlier juristic attributions to the Prophet.76 By the time of the rise of the collections of legal maxims in the 7th/13th                                                                   76 The earliest juristic attribution of the maxim to the Prophet that I have been able to find from a source verifiably ascribed to its writer is that of the Ḥanafī jurist Jaṣṣāṣ (d. Aḥkām al-Qurʾān. Ḥanafī. they resisted it in criminal law. 361/971 or 371/981). 190. ʿAbd al-ʿAzīz alʿUtbī (d. 1999). as enshrined in the ḥudūd maxim. jurists insisted on the equal-treatment theory of ḥudūd avoidance and championed the ḥudūd maxim as the central substantive canon of criminal law for all defendants regardless of status or political pull. Juristic Proponents The ḥudūd maxim appears in the earliest Islamic legal texts. but where jurists accommodated it generally. 520/1122). See Khushanī. Mālik’s student ʿAbd al-Raḥmān b. al-Ḥārith al-Khushanī (d. Aḥmad b. al-Qāsim reportedly invoked the maxim as a ḥadīth to avoid the punishment.from the earliest period. Ḥabīb (d. As shown below. 16:324 (quoting the ʿUtbiyya: qad jāʾa ʾl-ḥadīth idraʾū ʾl-ḥudūd biʾl64    . Akhbār. al-Bayān waʾl-taḥṣīl. 3:330. 238/853) attributed the maxim to the Prophet as well. In society. For example. around the same time. 1984). ed. as contemporaneous sources indicate that no other 2nd/8th or 3rd/9thcentury figure deemed the maxim prophetic—even though most later sources suggest that they did. as jurists cite and apply it in considerations of criminal violations. the Qayrawānī biographer Khushanī records an incident where the Cordoban Mālikī jurist ʿAbd al-Mālik b. 370/981). See Muḥammad b. 255/869). Akhbār al-fuqahāʾ waʾl-muḥaddithīn. Another prominent Mālikī jurist of Cordoba. and Imāmī Shīʿī jurists developed the doctrine and continued to apply the maxim widely. Sālim Muṣṭafā al-Badrī (Beirut: Dār al-Kutub al-ʿIlmiyya. but the possibility of interpolation cannot be ruled out. 186-91. there is the citation to Ibn Ḥabīb—both a jurist and a traditionist—who reportedly used the maxim as a prophetic saying to save his brother Hārūn from an accusation of blasphemy. and seems likely.

Muḥammad al-Qudūrī (d. See ʿUmar b. For juristic and traditionist criticisms of these prophetic attributions in the later literature. Ibn al-Qāsim recounted the maxim to Saḥnūn twice. Section V. he obtained a notebook recording Mālik’s sayings and legal opinions from his student Asad b. 1993). 428/1037). for example. ʿAbd al-Karīm al-Jīdī.) Khushanī’s “prophetic” attributions here should be read with caution. Though Ḥanafīs do not believe there to be ambiguity in this case. 122. defends the unique Ḥanafī position that judges need not avoid imposing the ḥadd punishment for zinā on the perpetrator because of their view that his act could not have been involuntary. they did not append a prophetic attribution to it. As recorded in the Mudawwana.B. al-Furāt (d. similarly relied on Ibn al-Qāsim through copying the latter jurist’s notebooks (juzʾ. 70-72. he would have done so when relating (or verifying) Mālik’s opinions to Saḥnūn and/or in his notebook from which ʿUtbī copied. juristic writings well reflect the entrenchment of that maxim. 181. adduces the maxim without referring to it as a ḥadīth.). ʿUtbī. 240/854) relied on Ibn al-Qāsim in compiling the Mudawwana. 65    . We would expect that if Ibn al-Qāsim in fact quoted the maxim as a prophetic ḥadīth in one place. On the flip side. a minority of jurists beyond the 4th/10th century seems—along with Ibn Ḥazm—to have continued the earlier trend of not regarding the maxim as prophetic. a contemporary of Saḥnūn. al-ʿUtbiyya. See Bazdawī (d. see below. samāʿ) amongst those of other students of Mālik in his compilation of Mālikī opinions. Mabāḥith fī ʾl-madhhab al-Mālikī bi ʾl-Maghrib (Rabat: al-Hilāl al-ʿArabiyya liʾl-Ṭibāʿa waʾl-Nashr. note 42. n.77 In the case of a man forced to rape a woman. A brief survey of these school’s positions in works of fiqh and legal maxims demonstrates the extent to which the ḥudūd maxim had become central to criminal law in both citation and application. See above. it is not clear whether ʿUtbī’s use of ḥadīth is to be taken in the developed technical sense of a prophetic statement. as fear—they say—prevents desire and arousal. That is. and—in short form—works of legal maxims. which were then culled out and applied in works of fiqh. they developed their own conceptions of what constituted the types of ambiguities that would evoke the maxim’s application. 213/828) and verified those answers with Ibn al-Qāsim directly. the earlier jurists ʿUtbī cited in this work either did not know the maxim as prophetic or if they did. In his work on jurisprudence. 77 As a ḥadīth and a legal maxim. but on specifically anonymous authority both times (yuqāl and qad qīla). including early precedents. But this seems not to have been the case. Aḥmad b. Uṣūl al-Bazdawī (Karachi: Maktabat Jāvīd Barīs. As they did so.through 10th/16th centuries. Qudūrī notes that he would avoid the punishment if there were                                                                                                                                                                                                 shubahāt). jurists constantly employed the maxim to resolve the “hard cases”— those that were not rendered clear-cut by existing texts. 117. fatwās. the leading Ḥanafī of his time in Baghdad. and we have indications that at least in one case. (I owe these references to Maribel Fierro. 482/1089).d. as they appear in a source from a period when the maxim has become entrenched as a prophetic ḥadīth (4th/10th century). a Ḥanafī jurist of the 5th/11th century. Saḥnūn (d.

ed. al-Baḥr al-rāʾiq sharḥ Kanz al-daqāʾiq ([Cairo]: n. 2004). 2:285. 483/1090). and others). Tirmidhī. 80 79 Ibn Nujaym. Mabsūṭ. 290.                                                                   78 Abū ʾl-Ḥusayn al-Qudūrī. ed. Tabyīn al-ḥaqāʾiq. 1:551. Ṣirāṭ al-najāt (Qum: Dār al-Ṣadīqa al-Shahīda. Abū ʾl-Ḥusayn ʿAbd al-Majīd al-Murādzahī al-Khāshī (Zāhidān. 9:4150-58. 1422/[20012]). 5:5-15. 1:147 (attributing the maxim to the Prophet). Ibn Nujaym. 1893?). 3:566-68. the matter had been settled amongst the jurists. 1996). 1973). Yūsuf Zaylaʿī. see Jawād al-Tabrīzī. Aḥmad al-Nasafī.. Muḥammad Aḥmad al-Sirāj and ʿAlī Jumʿa Muḥammad (Cairo. Iran: Muʾassasat Usāma. 167. see also Shams al-Aʾimma al-Sarakhsī (d.any ambiguity by operation of the ḥudūd maxim announced by the Prophet. ed. For example. 970/1563). and marriage without witnesses (permitted by Mālikīs). 1968).p. says that the ḥadīth in its popular form (idraʾū ʾl-ḥudūd biʾl-shubahāt) is inauthentic or anomalous (gharīb). ed. 11:5897 (attributing the standard formula to the Prophet: (idraʾū ʾl-ḥudūd biʾl-shubahāt).g. Hidāya. The basis for avoiding the ḥadd in such cases. 9:61-66.78 He and other Ḥanafīs uniformly apply the maxim in several cases of ambiguity when they do find it.”80 Similarly. Abū Ḥāmid al-Ghazālī (d. ʿAbd Allāh b. Ibn al-Humām. Abū Bakr al-Kāsānī. Burhān al-Dīn al-Marghīnānī. 3:333. with many problematic links in the chains in the ḥadīth collections. ed. Abū ʿAbd Allāh Muḥammad Ḥasan Ismāʿīl al-Shāfiʿī (Beirut: Dār al-Kutub alʿIlmiyya 2001). in Akmal al-Dīn Muḥammad b. Ashbāh. [1972?]). Sarakhsī. 505/1111) adduces the legal maxim as a prophetic ḥadīth when he applies it to require avoiding the ḥadd punishment for zinā in a situation where in two people had intimate relations in the context of a marriage of disputed legal validity. 2007). But some scholars notice that the ḥadīth was problematic and likely inauthentic. Ghazālī explains. Alexandria: Dār al-Salām. saying that “jurists of all regions have come to a consensus that [the maxim applies]. Aḥmad Shams al-Dīn (Beirut: Dār al-Kutub al-ʿIlmiyya. 66    . al-ʿInāya fī sharḥ al-Hidāya (Beirut: Dār al-Kutub al-ʿIlmiyya. in the Shāfiʿī context. Aḥmad Mukhtār ʿUthmān ([Cairo]: Zakariyyā̄ ʿAlī Yūsuf. Muḥammad al-Bābartī. Ibn Mājah. 2003).79 By the time of Ibn Nujaym (d. ed. 5:249-52. He announces the ḥudūd maxim as an authentic prophetic ḥadīth as agreed-upon and accepted by the entire Muslim community. marriage without a guardian (permitted by Ḥanafīs). ed. the Sunnī ḥadīth scholar ʿAbd Allāh b. 1:563-64. Badāʾiʿ al-ṣanāʾiʿ. For a similar view in the Shīʿī context.. Naṣb al-rāya: takhrīj aḥādīth al-Hidāya. Aḥmad ʿIzzū ʿInāya (Beirut: Dār al-Kutub al-ʿIlmiyya. Examples of these doubtful marriages include temporary marriage (permitted in the Sunnī Meccan school and by the Shīʿa). 142 (citing the maxim—here: al-ḥudūd tudraʾ biʾl-shubahāt—as a ḥadīth in collections of Ibn ʿAdī. Uṣūl. Abū ʾl-Wafāʾ al-Afghānī (Beirut: Dār al-Maʿrifa. Kanz al-daqāʾiq. Tajrīd. Fakhr al-Dīn al-Zaylaʿī. 4:148-52. Fatḥ al-qadīr (Beirut: Dār Ṣādir. who authored the central work on Ḥanafī legal maxims. Jamal al-Dīn al-Zaylaʿī. E. 2000).

5:442-45. Mughnī al-muḥtāj ilā maʿrifat maʿānī alfāẓ al-Minhāj. 7:306-13. on p. idem. Mecca: Dār al-Bāz. on p. e. al-Wasīṭ fī ʾl-madhhab. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya. (Damascus: Dār al-Qalam. 1974). mā ʾstaṭaʿtum). 1980). 2007). al-Ḥāshiya ʿalā Sharḥ Ibn Qāsim al-Ghazzī (Beirut: Dār al-Maʿārif.g. ed. the fragment of the work attributed to Ibn ʿAdī. 911/1505). 2:383-90. ʿAbd al-ʿAzīz al-Ḥaddād (Beirut: Dār al-Bashāʾir. Ibrāhīm b. 2000). Muḥammad al-Bājūrī. 2:279-80. and thus does not present it as a ḥadīth or discuss whether he deems it to be one. who authored a core work on Shāfiʿī legal maxims. concerned with the origins of the maxim. ʿAlī Muḥammad Muʿawwaḍ and ʿĀdil Aḥmad ʿAbd al-Mawjūd (Beirut: Dār al-Kutub al-ʿIlmiyya. ed. see also idem. 385. Rawḍat al-ṭālibīn. and as a khabar ṣaḥīḥ on pp. Ibn Ḥajar al-Haytamī. idem. the “[prophetic] ḥadīth:” “avoid criminal punishments in cases of doubt.g. ed.. 1997). Ashbāh. Abū ʾl-Qāsim al-Rāfiʿī. The Prophet. Wajīz.. 67    . 1994). 1997). biʾl-shubahāt and . 2:167. Aḥmad b. 1971).84                                                                   81 Abū Ḥāmid al-Ghazālī. ed.82 By the time of Suyūṭī (d. 118. 2nd ed. 11:144-50 (citing the ḥudūd maxim as a prophetic ḥadīth.83 the matter had been settled as much for Shāfiʿīs as it had for Ḥanafīs. al-Mustaṣfā. al-Majmūʿ sharḥ al-Muhadhdhab.. 4:118-21 (citing the ḥudūd maxim as a prophetic ḥadīth. 8:7-15. al-Tabṣira fī uṣūl al-fiqh. Muḥammad Najīb al-Muṭīʿī ([Cairo]: Maktaba alʿAlamiyya biʾl-Fajjāla. Minhāj al-ṭālibīn. 3:206. 2001). 1:382. Suyūṭī explains. e. ed.. Tuḥfat almuḥtāj sharḥ al-Minhāj. See al-ʿIzz b. Abū Isḥāq al-Shīrāzī. ed. had commanded ḥudūd avoidance in instances of doubt or ambiguity. 1988). 1:485 (indicating that the Prophet said both idraʾū ʾl-ḥudūd . idem. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya. Tirmidhī). Muḥammad al-Khaṭīb alShirbīnī. ed. 236-38 (citing the standard formula and listing various applications of the maxim). 6:443-44 (quoting the standard formula: idraʾū ʾl-ḥudūd biʾl-shubahāt). ʿAbd Allāh Maḥmūd Muḥammad ʿUmar (Beirut: Dār al-Kutub al-ʿIlmiyya.. He is not.g. Suyūṭī’s discussion occurs in a chapter entitled al-ḥudūd tasquṭ [instead of tudraʾ] biʾl-shubahāt. 18:375. for support. Cf. Muḥammad Ḥasan Haytū (Beirut: Dār al-Fikr. and other later collections. al-ʿAzīz sharḥ al-Wajīz. Ḥilyat al-ʿulamāʾ fī maʿrifat madhāhib al-fuqahāʾ. Muḥyī ʾl-Din al-Nawawī. amongst other principles ranging from the general objectives of the law (maqāṣid) and rules of propriety (adab) to legal maxims proper. 1992). 83 He discusses the maxim and its various applications under the title al-Qāʿida fī ʾl-shubahāt al-dāriʾa liʾlḥudūd (“on the maxim regarding ḥudūd-averting doubts or ambiguities”).” and the juristic dispute suffices to create a ḥadd-averting doubt. al-Aḥkām al-sulṭāniyya. 11920). and even before. Sayf al-Dīn Abū Bakr al-Qaffāl al-Shāshī. 84 82 Suyūṭī. Nazīh Kamāl Ḥammād and ʿUthmān Jumuʿa Ḍamīriyya. ed. he cites the two canonical collections that include this maxim (Ibn Mājah. Aḥmad Maḥmūd Ibrāhīm and Muḥammad Muḥammad Tāmir ([Cairo?]: Dār al-Salām.. al-Qawāʿid al-kubrā.81 Other Shāfiʿīs uniformly apply the maxim in like cases involving other types of doubt or ambiguity. E. Yāsīn Aḥmad Ibrāhīm Darādikah (Amman: Maktabat al-Risāla al-Ḥadītha. however. ʿAbd al-Salām. 145).. ed. 254 (attributing it to the Prophet). Māwardī.

68    . Ḥāshiyat al-Dasūqī ʿalā ʾl-Sharḥ al-kabīr (by Dardīr). which explicitly attributed the maxim to the Prophet. he explains that even though the maxim is not authentic (ṣaḥīḥ).The Mālikīs are not much different. e. ed. Ḥajjī̄ (Rabat: Wizārat al-Awqāf waʾl-Shuʾūn al-Islāmiyya. 240 (al-farq … bayn qāʿidat mā huwa shubha tudraʾ bihā ʾl-ḥudūd waʾl-kaffārāt wa-qāʿidat mā laysa kadhālik). M. see. cf. ed. 1994). the maxim was firmly entrenched as a ḥadīth and legal principle and accordingly appears in his work of legal maxims.. He also purports to be following Ibn Yūnus’s practice. ibid. he is following prophetic instructions as well as precedent recorded by Mālik’s student Ibn al-Qāsim (d. 4:1307. Ibn al-Shaṭṭ. Bidāyat al-mujtahid. Idrār al-shurūq ʿalā Anwāʿ al-furūq (ʿUmdat al-muḥaqqiqīn). who comments on Qarāfī’s Dhakhīra. 2007). 2:88 (standard version. on the margins of Qarāfī. al-Thamar al-dānī fī taqrīb al-maʿānī sharḥ Risālat al-Qayrawānī (Cairo: Dār al-Faḍīla. Muḥammad Bū Khubza (Beirut: Dār al-Gharb al-Islāmī. 191/806) in cases of ignorance. Shams al-Dīn al-Dasūqī. ʿAbd al-Samīʿ al-Ābidī alAzharī.). [198-?]). 1981). even if they disagree as to what constitutes doubts that are ḥaddaverting). Muḥammad ʿUlaysh ([Cairo]: Dār Iḥyāʾ al-Kutub alʿArabiyya. Anwār al-burūq fī anwāʿ al-furūq (Beirut: Dār al-Maʿrifa. 2:324 (noting that all jurists agree—based on the prophetic ḥadīth idraʾū ʾl-ḥudūd biʾl-shubahāt—that an element for the crime of zinā is the absence of doubt. no. Al-Shaykh al-Mufīd (d. al-Miʿyār al-muʿrib waʾl-jāmiʿ al-mughrib ʿan fatāwā ahl Ifrīqiya waʾl-Andalus waʾlMaghrib. 2:431 (quoting an opinion of a judge attributing the maxim to the Prophet).g. Here he does not attribute the maxim to the Prophet. see Ibn Farḥūn.87 By Qarāfī’s time (d. 12:50-51. Jamāl Marʿashlī (Beirut: Dār al-Kutub al-ʿIlmiyya. ed.86 Other Mālikīs followed suit. Aḥmad al-Wansharīsī... 88 87 See Shihāb al-Dīn al-Qarāfī. 684/1285). which is central to the Mālikī legal corpus. 684/1285). 12:60 (applying it as a ḥadīth and maxim to several cases). al-Dhakhīra fī furūʿ al-Mālikiyya. 197-). 595/1198) explains that the Prophet commanded ḥudūd avoidance in all cases of doubt or ambiguity.88 Shīʿī jurists follow a similar pattern. 617 (standard version.85 Qarāfī adds that. attributed to the Prophet).. 4:337 (wa-qad wurida ʾdraʾū ʾl-ḥudūd biʾl-shubahāt . Ibn al-Shaṭṭ. 4:493-95 (same). For legal opinions arising in actual judicial cases. 86 Shihāb al-Dīn al-Qarāfī (d. see also ibid. Ibn Rushd al-Ḥafīd (d. appears to be an exception to the dominant Mālikī trend of attributing the maxim to the Prophet. For deliberations in fiqh works. Tabṣirat al-ḥukkām. 4:316. see. in applying the maxim. For instructions in a manual on judicial administration. as noted above. 413/947) notes that defective contracts give rise to ḥudūd avoidance if entered into in the presence of doubt                                                                   85 Ibn Rushd al-Ḥafīd. ibid. 2:297 (citing the standard formula). Mālikīs regularly conceive of the maxim as a prophetic ḥadīth and apply it as such in deliberations both about legal issues and in actual cases. But he does make that attribution in his Dhakhīra. attributed to the Prophet). ed. Furūq.. it is nevertheless applicable because there is juristic consensus that imposing ḥudūd punishments can occur only where there is no doubt or ambiguity (shubha).. Ṣāliḥ b. 2001).

e. Ibn Idrīs al-Ḥillī (d. 711. esp. ibid. 598/1202) later spells out that the maxim applies simply because the Prophet commanded it. 1342/[1963]). ‘avoid ḥudūd punishments in cases of doubt or ambiguity. Uṣūl al-fiqh. and instances where a defendant repents before a case is brought before the courts. Ibn Idrīs.91 Al-ʿAllāma al-Ḥillī notes several types of ḥadd-averting doubt in one of his treatises. his entitlement to some portion of the spoils creates ambiguity at the intersection between his ownership interest and the rule requiring him to wait for distribution of the spoils. For example. Abū ʾl-Ṣalāḥ al-Ḥalabī. 787. Kitāb al-sarāʾir (Qum: Muʾassasat al-Nashr al-Islāmī. 1416/[1996]). as in rape. 2:746. 598/1201-2). ibid. with brief explanations. see idem.. he should not be punished for theft because. Irshād al-adhhān ilā aḥkām al-aymān. Qawāʿid al-aḥkām (Qum: Muʾassasat al-Nashr al-Islāmī al-Tābiʿa liJamāʿat al-Mudarrisīn bi-Qum.or ambiguity. Kāfī. 450. Abū Jaʿfar al-Ṭūsī. ed. 3:446 (on removing ḥadd liability for alleged cases of zinā: al-khabar al-madhkūr al-mujmaʿ ʿalayh … [wa-] li-qawlih ʿalayhi ʾl-salām idraʾū ʾl-ḥudūd biʾl-shubahāt).. al-Rasāʾil al-uṣūliyya (Qum: Muʾassasat al-ʿAllāma al-Mujaddid al-Waḥīd al-Bihbahānī. 787. 3:485 (qawl al-rasūl ʿalayhi al-salām al-mujmaʿ ʿalayhi idraʾū ʾl-ḥudūd biʾl-shubahāt. (Qum: Muʾassasat al-Nashr al-Islāmī.” Rather. it is a concise listing of fiqh rulings. 789. 2:708.g. in addition to citations above.89 Ibn Idrīs (d. 446 (two instances). Al-ʿAllāma al-Ḥillī (d. 2:170-92. as a soldier. Despite its title. al-Muqniʿa (Qum: Muʾassasat al-Nashr al-Islāmī.” this is not a treatise on legal maxims proper. 2nd ed. shubha ḥukmiyya] and shubha fī ṭarīq al-ḥukm [i. 3:521-23..93                                                                   89 Mufīd. He applies the rule to women (victims) accused on zinā in instances of alleged coercion. Muḥammad Riḍā al-Muẓaffar.. and its title more accurately relates a more general sense of “principles of Islamic legal rulings. For further detail. Fāris alḤassūn (Qum: Muʾassasat al-Nashr al-Islāmiyya. 3:432. 789 (al-ʿuqūd al-fāsida tudriʾ al-ḥadd … biʾl-shubahāt). 4:314-15 69    . which in other contexts means “legal maxims. 92 93 Shīʿī qawāʿid works tend not to list types of shubha that require (or validate) ḥudūd-avoidance separately from general discussions about shubha in uṣūl works or citations of the ḥudūd maxim in criminal law chapters in fiqh works. At base. 413 (same). 457 (three instances). ibid. 484 (two instances). 1410/[1989-90]). Compare al-Waḥīd al-Bihbahānī. adduced to require canceling ḥadd liability for alleged cases of theft). 1410/[1989-90]). Sarāʾir. cf. 2:725. universally agreed upon. 3:433-4. 3:475 (on voiding ḥadd liability for alleged cases of drinking: fa-innahu qāla ʿalayhi al-salām wa-rawathu ʾl-umma wa-ʾjtamaʿat ʿalayh bi-ghayr khilāf: idraʾū ʾlḥudūd biʾl-shubahāt). al-Raḥmatī al-Arākī. 716 (three instances). see ibid. e. ed.’”90 And the principle is applied elsewhere.92 and later jurists articulate the range of Shīʿī shubha as a part of the ḥudūd maxim’s central place in Shīʿī criminal law.. al-Nihāya fī mujarrad al-fiqh waʾl-fatāwā ([Tehran]: Chāpkhāna-yi Dānishgāh.. 91 90 See. there can be no punishment then because of “the statement of the Prophet.e. 1410/[1990]). see also 787 (citing a version of the maxim twice). 403-04 (describing categories of shubha fī nafs al-ḥukm [i. shubha mawḍūʿiyya]). 1413-1419/[1992-1999]). 726/1325). see 3:428. 406 (recognized twice). if a soldier takes a portion of war spoils before they have been divided. 445 (two instances). 1423/[2002?]).

such that later Ḥanbalīs are of two minds on the matter. outlines three categories: the first two as labeled elsewhere—shubha ḥukmiyya (in which he includes ignorance of the law [jahl]) and shubha mawḍūʿiyya—plus a third category (which he culls from the detailed legal rules in fiqh manuals): shubha that arises from coercion and mistake (shubha-yi khaṭaʾ and shubha-yi ikrāh). as noted above. Muḥammad al-Fāḍil alLankarānī. but many apply it nonetheless.B. and application. al-Intiṣār fī ʾl-masāʾil al-kibār. Sulaymān b. 1993). Ḥanbal never considered the standard form of the maxim to be a prophetic ḥadīth. 21 (describing shubahāt ḥukmiyya). 1993). See Dāmād. ʿAbd Allāh al-ʿUmayr (Riyadh: Maktabat al-ʿUbaykān. albeit typically without attributing it to the Prophet. Ẓāhirīs are adamant in their complete rejection of the maxim. Ibrāhīm disagreed with his teacher’s view that drinking intoxicating beverages warranted ḥadd punishment even when a person                                                                                                                                                                                                 (distinguishing shubahāt ḥukmiyya from mawḍūʿiyya). Maḥfūẓ b. Sulaymān b. for example. Yet. works by two 5th/10th century scholars. 3:1120-21. al-Muqniʿ fī sharḥ Mukhtaṣar al-Khiraqī. Muṣṭafā Muḥaqqiq Dāmād. 1378). 471/1078-9). Ibn Ḥanbal’s student Isḥāq b. These two features—taken as a reflection of his traditionist jurisprudence—perhaps caused some dissonance in Ḥanbalī law. as with the eponyms of the other schools. From the beginning. Ḥanbalīs are ambivalent. an exception. 4:54-61. ed. with. and perhaps otherwise. Aḥmad al-Kalwadhānī (d. Some apply the maxim. They largely reject the maxim’s prophetic provenance and question the scope of its application. the Ḥanbalī scholar is to be found who attributes the ḥudūd maxim to the Prophet. its attribution. Ibn al-Bannāʾ (d. 70    94 .94 For example. To be sure. 1416/[1995]). he mentions another version of the maxim as a prophetic ḥadīth in his Musnad. Aḥmad b. See. al-Qawāʿid al-fiqhiyya (Qum: Mihr. ʿAbd al-ʿAzīz b. ed. for example. Juristic Detractors (or Reluctant Adherents) Ḥanbalī and Ẓāhirī jurists differ greatly from their Sunnī and Shīʿī counterparts by questioning or strongly opposing the ḥudūd maxim. he signals that the application of the maxim was sound in cases of coercion. 510/1116). Exceptionally. Qavāʿid-i Fiqh (Tehran: Markaz-i Nashr-i ʿUlūm-i Islāmī. but deems it weak. Ibrāhīm al-Baʿīmī (Riyadh: Maktabat al-Rushd. we have noted that. 1:313-19.

” Thus.g. that “you and your property belong to your father.” But he was of the opinion that the ḥadd punishment did not apply because of the principle requiring “the ḥadd to be averted in cases of doubt.97 and sometimes citing it to require avoidance of ḥudūd punishments in certain cases. sometimes referring to the maxim as a “foundational principle” of criminal law.does not get drunk. 4:550 (explaining that the second-hand testimony admissible in most commercial law matters is inadmissible in ḥudūd cases—li-anna mabnāh ʿalā ʾl-darʾ biʾl-shubahāt). ed. based on a prophetic ḥadīth that “even small amounts of drinks that are intoxicating in abundance are ḥarām. because “ḥudūd are averted in cases of doubt. the erudite scholar Ibn Qudāma (d. Maḥmūd et al. 98 See Ibn Qudāma. Ḥanbal.. Zuhayr al-Shāwīsh (Beirut: al-Maktab al-Islāmī. al-Kāfī fī fiqh Ibn Ḥanbal. (Riyadh: Dār al-Hijra. 275/888f). Mughnī. 4:179. the father is not punished for stealing his son’s or grandson’s property due to ambiguities that arise as to the status of his ownership over that property in light of the prophetic statement addressed to a young man. E. 9:116 (noting three other prophetic ḥadīths that create ambiguities as to whether a man has an ownership interest in his children’s property sufficient to avoid imposing the ḥudūd on him in cases of theft because of the ḥudūd maxim (i.”96 Compared to the other legal school’s assiduous attribution of the maxim to the Prophet by Ibn Qudāma’s time and the provision here of a prophetic ḥadīth to prove his point.. Abū ʾl-Ḥusayn Khālid b. 96 97 Ibn Qudāma. that ḥudūd tudraʾ biʾl-shubahāt).98 but never—so far as I can tell—on the assumption or assertion that it is prophetic. 2:265. 2004). Ibn Qudāma’s invocation of the maxim without a prophetic attribution is striking. and because the greatest shubha is where a man takes property in which the law gives him a property interest 71    . 620/1223) in his Kāfī announces that one necessary element for finding a person guilty of committing theft is that there be no ambiguity as to ownership of the stolen item. Isḥāq did agree that the act was prohibited.”95 More tellingly.                                                                   95 See Isḥāq b. ed.e. Ibid. Ibrāhīm al-Naysābūrī (d. He repeats this here and in other works. 1979). Masāʾil al-Imām Aḥmad b..

2:57. 1973). Muḥammad b.99 The illustrious and sharp-tongued Ibn Qayyim alJawziyya. 3:11.102 necessity (ḍarūra). 3:13-15.. 2002). but he attributes it to the Sunan of Abū Dāwūd in a version that no traditionist or jurist knew.101 He even applies it to require ḥudūdavoidance in extreme situations.103 and the public interest (maṣlaḥa). ʿAbd al-Munʿim Khalīl Ibrāhīm (Beirut: Dār al-Kutub al-ʿIlmiyya. Majmūʿ alFatāwā. Muḥammad b. but not attributing it to the Prophet). Ibn Kathīr. version 2). see ibid. 99 E. His citation is somewhat off. 347-48. We have already seen one sort of alternative ground when Ibn Qudāma cited other prophetic ḥadīths as grounds for avoiding punishments. he cites the maxim approvingly in his interpretation of a Qurʾānic verse governing the authoritativeness of singlesources reports. Ibn al-Qayyim follows this approach and adds to those textual bases reasons of repentance (tawba). See Ibn Taymiyya. 72  102 103 104   . 451. qiṣāṣ).100 advances pointed remarks in this vein. He acknowledges the maxim in the form that “punishments” (rather than the fixed punishments that form ḥudūd laws) “are to be avoided in cases of doubt or ambiguity. 1997). 354. Qāsim al-ʿĀṣimī al-Najdī (Beirut: Maṭābiʿ Muʾassasat alRisāla. Ibn Taymiyya “silently” rejects the ḥudūd maxim.Other Ḥanbalīs follow suit.” perhaps using the non-technical term to underscore the non-prophetic nature of the saying or to indicate that it traverses ḥudūd-laws proper (to include discretionary punishments. 359. Ibid. 363-64. it combines the standard version with one usually listed in collections of Tirmidhī and others (see Appendix. and retaliation. 15:308 (..g. Curiously though. albeit on altogether different jurisprudential grounds. Iʿlām al-muwaqqiʿīn.. kamā fī Sunan Abī Dāwūd: idraʾū ʾl-ḥudūd biʾl-shubahāt fa-inna ʾl-imām in yukhṭiʾ fī ʾl-ʿafw khayr min an yukhṭiʾ fī ʾl-ʿuqūba).p... See ibid. ʿAbd Allāh al-Zarkashī. Ṭāhā ʿAbd al-Raʾūf Saʿd (Beirut: Dār al-Jīl. ʿAbd al-Raḥmān b. taʿzīr. Tafsīr (n. he says that criminal liability does not attach to anyone who takes food                                                                                                                                                                                                 [māl jaʿalahu al-sharʿ lahu] then advises him to consume it freely). 34:177ff (section on ḥudūd laws. Sharḥ al-Zarkashī ʿalā Mukhtaṣar al-Khiraqī.104 In discussing cases of necessity. 501. ed. 1401). Ibid. For his frequent citations to the maxim. 3:418 (citing the maxim. Ibid. 350. 275-77..: Dār al-Fikr. student of Ibn Taymiyya. ed.. 12:243-4. 100 101 Ibn Qayyim al-Jawziyya. 3:11. for example. That is. 1:104 (al-ʿuqūbāt tudraʾ biʾl-shubahāt). no mention of the maxim). he is aware of it—particularly given its prominence in Ibn Qudāma’s works—but he omits it in his ḥudūd opinions. ed. 345-46..

whenever a legal act is performed on the basis of a contract. Tajrīd. e. 3:15 (referring to such instances as maʿa ḍarūrat al-muḥtāj). repeat thefts. which would exculpate the offender in like cases. or the incoherent Ḥanafī rule of avoiding the ḥadd punishment for a sex crime when a person has incestuous relations under the guise of a marriage contract (even though some Ḥanafīs would apply the ḥadd sanction to a man who mistakenly thinks that the woman with whom he had intimate relations was in fact his wife). 73    .106 Even if one accepts that the ḥudūd maxim is prophetic and warrants application on that basis. Sarakhsī (d. Under this category of shubha. some Ḥanafīs hold that. However. 1:314-15. he is ḥadd-eligible if she turns out not to be.. destruction rather than outright theft of an item kept in a secure location. if a man finds a woman sleeping in his house or bed and has intimate relations with her on the assumption that she is his wife. Ibn al-Qayyim criticizes the Ḥanafīs and other jurists for applying the rule willy-nilly at the first sign of potential doubt.g. Qudūrī (d.. 106 Ibid. 9:65 (quoting Hidāya). 483/1090). In sharp contrast with the majority view. he says that this (need for nourishment) creates a “strong doubt” as to culpability “that (requires) avoidance of the punishment from the one in need”—doubts certainly stronger than many of the so-called ambiguities adduced by several jurists. which no one in their right mind would have believed—absent the overuse of the maxim—was actually a ḥadd-averting ambiguity. what leads jurists to presume that the existence of a per se invalid marriage                                                                   105 Ibid. Rhetorically.during a time of famine or to anyone otherwise in need of food.105 Using the language of ambiguity and doubt. he asks how a jurist can consider the legal posture of a case to be ambiguous simply because it involves situations such as the following: taking perishable items or items that were once in the commons and freely available (such as water). Abū Ḥanīfa and the handful of Ḥanafī jurists who follow him on this matter (the rest follow Abū Yūsuf and Shaybānī’s opinion to the contrary) developed a category of shubha that may be called contractual. Accordingly. 11:5899. that semblance is a ḥadd-averting shubha under this maxim. even if knowingly—the existence of the contract creates the semblance of legality. See. even if defective from the onset—such as marrying a sibling.. 428/1037).

Aḥmad b. In these cases. Ibn al-Qayyim attacks his colleagues from other schools.108 Given the questionable status of the maxim (as applied) in early Ḥanbalī works. 2006).                                                                   107 Ibn al-Qayyim. 795/1393). 1:241. Iʿlām. liability for the punishment is not completely removed. as Ibn al-Qayyim had explained in more detail. liability for the ḥudūd punishments is canceled because of a textual or other legal impediment. Muḥammad al-Khalīl (Dammām: Dār Ibn al-Jawzī. as between siblings. Muḥammad al-Lāḥim. in his Qawāʿid. 74  110   . 1422/[2001-2]). the principal Ḥanbalī text on legal maxims. or a quasi-intentional homicide is the kind of ambiguity to which the maxim refers. See Ibn Rajab (d. he avoids ḥudūd punishments. for Ibn Rajab. requiring. See ʿAbd al-Karīm b. major Ḥanbalī jurists writing in the field do not mention it.. but the avoided ḥadd sanction is to be replaced with a heavy non-ḥadd punishment. 435-37 (in the chapter called man suqiṭat ʿanh alʿuqūba bi-itlāf nafs aw ṭaraf maʿa qiyām al-muqtaḍī lah li-māniʿ fa-innahu yataḍaʿʿaf ʿalayh al-ghurm. a Muslim to pay blood money equivalent to that of another Muslim for intentional homicide of a non-Muslim). saying that the jurists who find such cases to be confused or ambiguous (i. covers solely legal maxims concerned with commercial law. omits the maxim completely. Ibn Rajab. Others writing on legal maxims simply are not concerned with ḥudūd laws. does cite the ḥudūd maxim.contract.e. ed. 3:15. 108 109 Ibid. Ibn Taymiyya’s book. al-Qawāʿid al-fiqhiyya alnūrāniyya. and theft of food during a time of famine.110 Ibn al-Laḥḥām.. by the time of the rise of concentrated scholarship on legal maxims. to dispense with the ḥadd punishment for zinā or the retaliation requirement for homicide respectively?107 In a play on words. 1999). Qawāʿid (Mecca: Maktabat Nizār Muṣṭafā al-Bāz. to have shubha) are the ones who have confused (ishtabaha) cases that incur ḥadd liability with ones that do not. such as homicide of a Muslim against a non-Muslim. in his work on legal maxims. Sharḥ Tuḥfat ahl al-ṭalab fī tajrīd uṣūl Qawāʿid Ibn Rajab (Riyadh: Kunūz Ishbīliyyā liʾl-Nashr waʾl-Tawzīʿ.109 In certain cases. for instance. theft from a non-secure location or by stealth (as in fraud or embezzlement).

esp. inauthentic.112 and the reasons for avoiding the ḥadd sanction are really some legal impediment (here: missing element of the crime) rather than a genuine confusion of law or a mistake of fact as discussed by other jurists. 458/1066)). 307ff. as described above note 88).. ed. See above. note 94. al-Aḥkām al-sulṭāniyya. 471/1078-9) and Maḥfūẓ b. where he specifically criticizes the Ḥanafīs. Those scholars. Aḥmad al-Kalwadhānī (d. 263. Muḥammad Ḥāmid al-Fiqī (Cairo: Maṭbaʿat alSunna al-Muḥammadiyya. noticeably in the 5th/11th century. Ibn Ḥazm lambasts those who deem it permissible to avoid ḥudūd sanctions and makes several arguments as to why. 114 Ibid. 1:29 (citing a version of the standard formula: al-ḥudūd tudraʾ biʾlshubahāt). and definitely not prophetic.for him. 12:57-63 (masʾalat hal tudraʾ al-ḥudūd biʾl-shubahāt am lā). some non-Ẓāhirī jurists realized this as well (e. Muḥallā. Qāḍī Abū Yaʿlā (d. but not as a ḥadīth and only in the context of defending Ḥanbalī views on issues that are more polemical than authentically Ḥanbalī in what seems to be a refutation or “Ḥanbalization” of the Shāfiʿī jurist Māwardī’s famous tract on political theory of the same name). But see Abū Yaʿlā. 12:61-3. it is the expression of the uniform opinion “amongst all jurists” that there is no ḥadd. and Shāfiʿīs. Mālikīs. 1966). But acknowledging that the maxim did not originate with the Prophet formally did not translate into invalidation of the principle.. whose jurisprudence was more pragmatic and principle-based than formalistic and strictly text-based. 8:252 (mā jāʾa ʿan al-Nabī qaṭṭu). ed. the Mālikī jurist Ibn Shaṭṭ. does not attribute the maxim to the Prophet. ʿAbd Allāh al-Salāma (Riyadh: Dār Aṭlas). like most Ḥanbalīs.111 But he.113 For one thing. see his al-Jāmiʿ al-ṣaghīr.or qiṣāṣ-liability for minors “because [of the ḥudūd maxim]” and given that minority creates uncertainty (shubha) as to moral or legal culpability. For Abū Yaʿlā’s ḥudūd jurisprudence. Muḥammad Ḥāmid al-Fiqī (Cairo: Muṣṭafā al-Bābī al-Ḥalabī. Nāṣir b. To be sure. I have noted a couple of exceptions. 113 112 Ibn Ḥazm. 1956). in the order that he has ranked them according to their support for the maxim. Saʿūd b. al-Qawāʿid waʾl-fawāʾid al-uṣūliyya. at which time the other schools have started regularly invoking and emphasizing the maxim as a prophetic ḥadīth: the two leading Ḥanbalī scholars Ibn al-Bannāʾ (d. the maxim has no legal basis in his eyes. 9:428. 265-66 (mentioning shubha and ḥudūd avoidance. judging by the works of their more famous. * * * The Ẓāhirīs are unequivocal in their view: they reject the maxim outright.114                                                                   111 Ibn al-Laḥḥām. because—contrary to the widespread notion amongst later jurists attributing the maxim to the Prophet—it is invalid. saw substantive canons as precedents emanating from prophetic practice if not prophetic verbal 75    .. ed. 510/1116) (though the same is not true just a generation before.g. slightly older contemporary.

for him. the attestations of the practice in early Islamic criminal law sufficed to provide a basis for later Islamic criminal law. this includes some Ḥanbalīs and Ẓāhirīs. Māʿiz. which appears in ʿAbd al-Razzāq’s collection on the authority of ʿUmar (as reported by Ibrāhīm alNakhaʿī). (Though I know of no Akhbārī who has acknowledged that the maxim is not prophetic. And for them. 76    . the maxim itself runs counter to the weight of all recognized Islamic legal authority. Ibn Ḥazm says. not the law. Ibrāhīm al-Nakhaʿī was born after ʿUmar died!115 Moreover. but Ibn Ḥazm rejects such post-hoc explanation. For example. 8:252. reveals that it is patently inauthentic.116 Second. Amongst the Sunnīs. and thus non-normative for law. In other words. Proponents of the ḥudūd maxim point to reports of Companions’ discussions to the effect that the Prophet’s actions had to do with the presence of shubha. even the authentic ḥadīths on which ḥudūd maximproponents rely to shore up their positions contain no evidence that the presence of shubha drove the Prophet’s decisions. is unrevealing about how to approach criminal law. Akhbārīs can be added in certain cases. The Lawgiver announces certain legal prescriptions and proscriptions. and imposes                                                                                                                                                                                                 directives. Akhbārīs place wide-ranging restrictions on the scope of the maxim in line with certain theological-jurisprudential principles that also arise from their textualist-formalist orientation. Thus. notes that His laws (ḥudūd) are not to be transgressed. a look at the most-quoted form of the maxim.) 115 116 See above.Purported maxims-as-ḥadīths are. but whom the Prophet turned away four separate times before finally ruling that the ḥadd sanction was due. Amongst the Shīʿa. the non-prophetic provenance was problematic only for formalist-textualist schools of law that purported to build the law solely on explicit textual directives pronounced by God or the Prophet. who confessed to committing zinā. Ibn Ḥazm. note 82. The law says that ḥudūd sanctions are mandatory when someone has confessed to a crime. a ḥadīth about a member of the early Medinan community. calling it the mere speculation of the maxim-proponents. merely statements of Companions sometimes attributed to the Prophet. Muḥallā.

If these do not constitute ambiguities and doubts as to the establishment of a crime that. and other values are sacred.g. 8:252. honor. 9:428. Ibid. “Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan.” Arab Law Quarterly. 13. e. Muḥallā. 118 119 Ibn Ḥazm.. Malaysia. attempts to apply the maxim are incoherent. 77    .. this. the Qurʾān. became pregnant during a valid marriage that was not publicized. which was the ordinary sense in which most Muslim jurists came to regard the term—though contemporary scholars have pointed out that the first sense is Qurʾānic while the second is not. applying the ḥudūd maxim would lead to neglecting the ḥudūd laws entirely. then the entire conception and application of the maxim is incoherent. 2:229. 9:428 (citing a prophetic ḥadīth that life. are also amongst the harshest criminal law enforcers. Mohammad Hashim Kamali. See. Ḥanafīs and Mālikīs. 3 (1998): 203-34.. such as the possibility that she was raped. With the maxim. without ascertaining whether the accomplice was a knowing and willing participant to the crime. and the Sunna. Canceling ḥudūd liability so widely would cut against the consensus of Muslims. This is an equation of ḥudūd as moral boundaries to ḥudūd in the sense of fixed criminal laws.119 Ḥanafīs would impose the punishment for theft against accomplices who merely accompany a thief into a house. proponents merely                                                                   117 Ibid.118 Finally. whom he deems amongst the staunchest proponents of the maxim. to the effect that God’s laws (ḥudūd) are not to be transgressed). Ibn Ḥazm finishes. Mālikīs would impose ḥudūd punishments for fornication on an unmarried woman with the circumstantial evidence of pregnancy even if she denied having committed a sex crime knowingly or voluntarily. or was temporarily insane.certain punishments when they are. and Qurʾān. should avert the ḥadd punishment.117 Where the foundational sources stipulate certain ḥudūd punishments for specified crimes. even in the jurisprudence of doubt championed by ḥudūd maximproponents. for anyone who could proffer claims of ambiguity to void the punishment would do so by invoking the maxim. despite the existence of all kinds of possible ambiguities.

otherwise. the standard version was a substantive canon of settled law that reflected earlier precedents. So far as we can tell from the sources. in part because he believed Ibrāhīm to be mythical.” some mention of ambiguity. idraʾū ʾl-ḥudūd biʾl-shubahāt).” For him. Yet Schacht concluded that the maxim emerged at the time of Ibrāhīm al-Nakhaʿī’s student Ḥammād. A common link analysis of the ḥadīth-as-maxim would trace its prophetic attribution (or origin) to Zuhrī (d. transgress the law.120 VI. The ḥudūd maxim was not a prophetic ḥadīth. and apply rules disparately. when there is only shubha. even though Ibn Ḥazm rejects the basis and formulation of the ḥudūd maxim. Fierro concluded that the “as much as you can”                                                                   120 Ibid. punishment itself is impermissible.. even at that time. 96/717). ca. ḥadīth scholars and jurists circulated versions of the ḥudūd maxim in two different spheres. and usually a rationale) the jurists used another (the standard version.complicate matters. Amongst the jurists. fa-in lam yathbut al-ḥadd lam yaḥull an yuqām bi-shubha …). both types were in circulation simultaneously at least by the mid-2nd/8th century. and in part because he did not have access to the sources showing Zuhrī as a common link. Whereas the former group used one type of formulation (“as much as you can. shubha has nothing to do with enforcing criminal law. Conclusion During the first three centuries after Islam’s advent. this statement virtually aligns his jurisprudence— albeit through other means—with that of ḥudūd maxim-proponents. In Ibn Ḥazm’s view. 124/742) and Ibrāhīm al-Nakhaʿī (d. the matter is simple: if the crime is established (and the accused found culpable). the ḥadd punishment is to be imposed. 78    . Strikingly. 12:57 (al-ḥudūd lā yaḥull an tudraʾ wa-lā an tuqām bi-shubha wa-innamā huwa ʾl-ḥaqq li-ʾllāh taʿālā walā mazīd. In fact “it is illegal [either] to avoid criminal sanctions in cases of shubha or to impose them in cases of shubha.

jurists both in favor of and against the maxim attempted to define legally cognizable ḥadd-averting doubts and ambiguities or to find other means of curtailing arbitrary enforcement of ḥudūd laws. which views anonymous sayings like the juristic form of the maxim as older than the isnād-clad ḥadīth forms. Politics and social status played a role in applications of the maxim and other areas of law. however. the jurist’s increasing insistence on forms of the maxim and sayings that countered hierarchy and emphasized mandatoriness of ḥudūd enforcement underscores the extent to which jurists militated against preferential treatment in ḥudūd laws. most tried to refine and strengthen it for these purposes. The popularized juristic version must have been a later modification of the ḥadīth-versions. political authorities exercised extremely wide discretion over criminal matters ostensibly within their enforcement jurisdiction (including ḥudūd sanctions. these views are not supported by the sources. which reveal the simultaneity of the two versions and a late adoption of a spliced version highlighting issues of social class. Ultimately. In fact. While some dispensed with the maxim altogether. 79    . For these reasons. she reasons. laws of retaliation. because there was a need to coat that too-broad version with a legalistic patina by using shubahāt as a technical legal term in place of the unwieldy “as much as possible” formulation. and discretionary punishments). Her analysis is a surprising reversal of a Schachtian conclusion (had he distinguished between the two types as she did). it could then be used more legitimately by jurists who tended to privilege (and benefit from) social status in their judgments.ḥadīth form of the maxim was in fact circulating at the time of Ibrāhīm al-Nakhaʿī. Too. to which jurists readily extended the ḥudūd maxim.

Mālikī. It has become a super-precedent.As the law developed. Shāfiʿī. and must therefore be prophetic. whose “founders” had cited and employed the maxims themselves (though not with prophetic attributions). Their answer to questions of doubt was otherwise. The ḥudūd maxim (idraʾū ʾl-ḥudūd biʾl-shubahāt) became a prophetic ḥadīth for Ḥanafī. Chapters 3 through 6 expand on questions of the definition and role of doubt (shubha) amongst the various schools of Islamic law in theory and in practice. This realization caused many of them to reject the maxim as both ḥadīth (in attribution) and substantive canon (in application). the maxim took on a standardized form in most juristic works of the 4th/10th century onward. often right alongside some five “universal maxims. As a result. This was the ready answer of most later juristic proponents of the ḥudūd maxim to the initial question posed: How does a judge really know when to punish the accused and what to do in cases of doubt given the appearance or accusation of criminal misconduct? Only the traditionist-textualist jurists—the Ẓāhirīs and some Ḥanbalīs—were consistently attuned to the non-prophetic pedigree of the maxim. and Shīʿī jurists.121                                                                   121 Over time. 80    . the maxim appears not only in these school’s books of law but also in compendia of legal maxims that attempt to extract the essential principles of the law. The matter grows to be so certain (or necessary) to them that the maxim becomes both a central legal maxim of Islamic criminal law and a prophetic ḥadīth to bolster the authenticity and reach of such a seemingly law-flouting maxim used to avoid ḥudūd punishments. including juristic views applying the ḥudūd maxim as well as those opposing it in favor of other strategies.” The ḥudūd maxim is so securely entrenched that it seems a necessary feature of law. most jurists elaborated complex and school-specific definitions for doubt and ambiguity (shubha) and applied the doctrine of ḥudūd avoidance in very different ways when beset with doubt.

Tuḥfat al-ashrāf bi-maʿrifat al-aṭrāf (Beirut: Dār al-Gharb al-Islāmī. 5:112-13.799. 2:41-42. Tirmidhī points out that the first chain is likely inauthentic because it alone attributes the saying to the Prophet 81    125 124 123 .) ʿAbd al-Razzāq (d. ʿAbd Allāh al-Jumʿa (Riyadh: Maktabat al-Rushd.) Ibn Mājah (d. 2004). 303/915)122 ʿAbd Allāh b. as Ibrāhīm b. 13. no. 1988). idem. Bashshār ʿAwwād Maʿrūf et al.945. Muṣannaf. Sunan.p. ed. no. Ḍaʿīf Ibn Mājah. Ziyād al-Baṣrī— Zuhrī—ʿUrwa—ʿĀʾisha (3) Abū ʿAmr ʿAbd al-Raḥmān b. Abū Yaʿlā.743.APPENDIX Ḥadīth Versions of the Ḥudūd Maxim (with isnāds/chains of transmission) Version 1 “Avoid ḥudūd punishments wherever you find an opportunity to do so. Abī Saʿīd—Abū Hurayra—Muḥammad Version 2 “Avoid ḥudūd punishments involving Muslims to the extent possible. 1993-1996). 18. 1424. al-Musnad al-jāmiʿ. 1999). 279/892)125 (1) Thawrī—Ḥammād—Ibrāhīm [al-Nakhaʿī]— [anonymous] (2) Wakīʿ [b. if there is an exculpating cause for [the accused]. 9:468. no. Ibrāhīm al-Laḥīdān and Ḥamad b. Muṣannaf (1972). no. Maḥmūd Muḥammad Maḥmūd Ḥasan Naṣṣār (Beirut: Dār al-Kutub al-ʿIlmiyya. fa-innah in yukhṭiʾ ḥākim min ḥukkām al-muslimīn instead of fa-inna ʾl-imām). 16.” (Idraʾū ʾl-ḥudūd ʿan al-muslimīn mā ʾstaṭaʿtum fa-in kāna lah makhrajan fa-khallū sabīlah fa-inna ʾl-imām in yukhṭiʾ fī ʾl-ʿafw khayr min an yukhṭiʾ fī ʾl-ʿuqūba. 1979). 10:166. Kuwait: Sharikat al-Muttaḥida. 211/826)123 Ibn Abī Shayba (d.698 (variations in Arabic text: fa-idhā wajadtum liʾlMuslim instead of fa-in kāna lah. no. ed. ʿAbd al-Razzāq. See. For an English translation. Faḍl’s narrations were rejected. 2:356. ed. al-Jarrāḥ—Wakīʿ—Ibrāhīm b. no.” (Idfaʿū ʾl-ḥudūd mā wajadtum lah madfaʿan. fa-ʾdraʾ ʿanh instead of fa-khallū sabīlah. Tirmidhī. 2545 (bāb satr ʿalā ʾl-muʾmin wa-dafʿ al-ḥudūd biʾl-shubahāt). Ibn Abī Shayba. then release him. 28. 12. 2007). Yazeed et al.] Rabīʿa—Yazīd b. [al-] Faḍl—Saʿīd b. Muḥammad b. ed. 9:360.. 1998).: 1965-1969). 235/849)124 Tirmidhī (d.972 (variations in Arabic text: ʿibād Allāh instead of muslimīn). no.. as it is better that the Imām make a mistake in pardoning than in punishing. Musnad. see Muhammad b. Muḥammad Nāṣir al-Dīn al-Albānī. English Translation of Sunan Ibn Mājah (Riyadh: Dār al-Salām. 4:161. 11:494. eds. al-Musnad al-jāmiʿ (Beirut: Dār al-Jīl. Ḥadīth critics concluded that this report was extremely weak. Sunan (n. Mizzī. 554. Irwāʾ al-ghalīl fī takhrīj aḥādīth Manār al-sabīl (Beirut: al-Maktab al-Islāmī. Zuhayr al-Shāwīsh (Beirut: al-Maktab al-Islāmī. 6618.. with accompanying footnotes. al-Aswad al-Baṣrī— Muḥammad [b. and trans.. Ziyād alDimashqī—Zuhrī—ʿUrwa—ʿĀʾisha—Muḥammad                                                                   122 Ibn Mājah. no. 17:344. al-Jarrāḥ]—Yazīd b.

17. Ziyād [al-Kūfī]. Note that this edition clarifies that what the 1966 edition presents as a single chain at 3:84 is in fact two chains. There is some confusion as to whether the Yazīd b. Ziyād—[Zuhrī]—[ʿUrwa]—ʿĀʾisha                                                                                                                                                                                                 and does so through Yazīd b. 5:112 (noting attributions also to Abū Hurayra [as in Ibn Mājah] and ʿAbd Allāh b. The more sound chain (aqrab ilā ʾl-ṣawāb) then is that of Wakīʿ (chain #4). Sunan. who was unreliable (ḍaʿīf al-ḥadīth). Tirmidhī. Abī Razma—al-Faḍl b. 5210). Ziyād al-Shāmī— Zuhrī—ʿUrwa—ʿĀʾisha—Muḥammad Bayhaqī (d. as Tirmidhī and Dāraquṭnī concluded. 4:62-63. to be inauthentic because of Yazīd b. it was transmitted by the reliable Wakīʿ b. Finally. He also found weak the chain reported by Rishdīn (chain #9). Dāraquṭnī adds that Wakīʿ related the saying on the authority of Yazīd in a chain that did not trace back to the Prophet (mawqūf) and agreed with Tirmidhī that this chain was more reliable. Note that Tirmidhī reports that this chain contains and stops with Yazīd b. 16.. Bayhaqī. Sunan (Beirut: Muʾassasat al-Risāla. Fierro has suggested that this was a deliberate substitution.e. 2004). 3097 (variations in Arabic text: transposition of mā ʾstaṭaʿtum and ʿan al-Muslimīn. This version of the report is not attributed to the Prophet. Ziyād’s unreliability (fīh ḍaʿf). who is preferred and more reliable (aqdam wa-athbat) than the Damascene Yazīd. ʿĪsā b. darʾ al-ḥadd repeated twice. 8:413. no.062 (variations in Arabic text from the second version [chain #10]: ʿan al-muslimīn omitted.. Dāraquṭnī. Ziyād [al-Shāmī?]—Zuhrī—ʿUrwa. which is also traced back to the Prophet. as in al-Musnad al-jāmiʿ. based on Bukhārī’s assessment that this Yazīd’s ḥadīths are to be rejected (i. and the first and second parts of the maxim transposed). Bayhaqī’s editor says that he is Damascene. no. Ziyād al-Shāmī—Zuhrī—ʿUrwa—ʿĀʾisha— Muḥammad (6) Ibrāhīm b. likely by way of Yazīd b. but to the Companion and Kufan jurist Ibn Masʿūd (mawqūf[an]). Bayhaqī traces that chain back to ʿĀʾisha via Yazīd b. 82    127 126 . Bayhaqī has no comment. apparently accepting the attribution of the saying to Ibn Masʿūd through Ibrāhīm al-Nakhaʿī. nos. Rashīd—Muḥammad b. ʿAmr [b. fa-in wajadtum liʾl-muslim makhrajan instead of fa-in kāna lah makhrajan). Ziyād—Zuhrī—ʿUrwa— ʿĀʾisha—Muḥammad (8) Wakīʿ—Yazīd b. 8:414.e. Ziyād in this chain is Kufan or Damascene (Shāmī). no. Sunan.e. a matter which requires further study. Like Tirmidhī. ʿAbd al-ʿAzīz— Dāwūd b. Sunan. Hārūn al-ʿIjlī—Muḥammad b.057-58 (variations in Arabic text for first version (chain #s 7-9): same as Dāraquṭnī’s version above. that he is munkar al-ḥadīth) and Nasāʾī’s similar conclusion (i. A Companion-attribution is to be expected. 458/1066)127 (7) Abū ʾl-Ḥasan ʿAlī Shaqīr b.. Bayhaqī found the chain ending in ʿĀʾisha (chain #8). Tahdhīb alkamāl. whom he deems weak. Ibid. ʿAbd al-ʿAzīz b. 385/995)126 (5) ʿAbd Allāh b. that he is matrūk [al-ḥadīth]). the Kufan paternal cousin of Wakīʿ (see Mizzī. Ziyād [al-Kūfī?]—. 25:196-99. 17. He deems the second chain (which he suggests goes back only to ʿĀʾisha) to be more sound (aṣaḥḥ). but Tirmidhī was aware of the difference and said that he was Kufan. Yaʿqūb—Abū Jaʿfar Aḥmad b. Rabīʿa. Dāraquṭnī has a problem with Yazīd b. Ḥammād—al-Ḥasan b. Jarrāḥ. Like Tirmidhī and Dāraquṭnī. Note that Muḥammad Rabīʿa in this edition should be Muḥammad b. Rabīʿa—Yazīd b. 2:41-42.799. Mūsā and [his father] Mūsā—Yazīd b. note 18. Ziyād from Damascus.. without complete chains).— [ʿĀʾisha] Dāraquṭnī (d. because of Rishdīn’s unreliability (i. as noted more extensively above. Ziyād al-Dimashqī. al-ʿĀṣ]. see also Bayhaqī. as this was a known saying amongst them. with the addition of lah after fa-inna ʾl-imām in yukhṭiʾ fī ʾl-ʿafw khayr). no. ʿArafa— Muḥammad b. Ziyād the Kufan.(4) Hannād—Wakīʿ—Yazīd b. Rabīʿa—Yazīd b. Muḥammad b.. innakum and appropriate verbs instead of imām. that he is ḍaʿīf).

as in Bayhaqī’s version below). Ḥarb. who then transmits the statement to Abū Hishām al-Rifāʿī (rather than to Ibn Abī Shayba. no. He does not trace this back to the Prophet and has no comment. Farwa. Farwa [sic = Isḥāq b. Najda—Saʿīd b. Jabal. Muṣannaf. no.— [Muḥammad: marfūʿ[an]] (10) Abū Ḥāzim al-Ḥāfiẓ—Abū ʾl-Faḍl Khamīrwayh —Aḥmad b. 458/1066)131                                                                   128 Ibn Abī Shayba. 3099 (reporting that this chain is weak because of the presence of Isḥāq b. except that it excludes the second part of that ḥadīth. no.. ʿAbd Allāh b.) Ibn Abī Shayba (d.964. He does not comment on the authenticity of the chain. 131 Bayhaqī. ʿĀmir al-Jahnī (3) Abu Ḥāzim al-Ḥāfiẓ—Abū ʾl-Walīd al-Faqīh—alḤasan b. 28. Jabal]. Ḥarb—Isḥāq b.966. 4:63-64. 17. whose ḥadīths are to be rejected (matrūk qawluh)). Abī Farwa—ʿAmr b.063 (Arabic text: idhā ʾshtabaha ʾl-ḥadd fa-ʾdraʾūh). 129 130 Ibid. Sunan. Shuʿayb—his father [= Shuʿayb b. and similar to the version recorded by Tirmidhī (version 2). and ʿUqba b. no.” (Idhā ʾshtabaha [ʿalayk] al-ḥadd fa-ʾdraʾah. 235/849)128 Ibn Fuḍayl—al-Aʿmash—Ibrāhīm [al-Nakhaʿī]— [anonymous: kānū yaqūlūn] Version 4 “If ḥadd [liability] is doubtful [to you]. 83    . Abī Farwa]—ʿAmr b. ʿĀmir (2) Muḥammad b. Shuʿayb —his father [= Shuʿayb b Muḥammad]—Muʿādh [b. as far back as ʿAbd al-Salām b. Abī Shayba—ʿAbd al- Dāraquṭnī (d. 385/995)130 Bayhaqī (d. 9:359. Masʿūd. as it is an anonymous saying adopted by Ibrāhīm al-Nakhaʿī. Manṣūr—Hushaym— ʿUbayda—Ibrāhīm [al-Nakhaʿī]—[ʿAbd Allāh] Ibn Masʿūd Version 3 “Avoid ḥudūd (punishments) involving believers to the extent possible.) Ibn Abī Shayba (d. using different phrasing (idraʾū instead of idfaʿū and idhā ʾstaṭaʿtum instead of mā wajadtum lah makhrajan).(9) Rishdīn b. ʿAbd Allāh b. Ghaylān—Abū Hishām al-Rafāʿī—ʿAbd al-Salām b. ʿAbd Allāh b. Saʿd—ʿUqayl—Zuhrī—.” (Idraʾū ʾl-ḥudūd ʿan ʿibād Allāh mā ʾstaṭaʿtum. and ʿUqba b.. [ʿAbd Allāh] Ibn Masʿūd.. 28. 235/849)129 (1) ʿAbd al-Salām [b Ḥarb]—Isḥāq b. ʿAbd Allāh b. Muḥammad]—Muʿādh b. Sufyān—Abū Bakr b. 8:414. Dāraquṭnī. This version is similar to the one recorded in Ibn Mājah (version 1). He does not comment on the authenticity of the chain. then avoid [the punishment]. 9:359. Sunan. Dāraquṭnī records the same text (with the addition of mā ʾstaṭaʿt) and the same chain.

Ibn Abī Shayba. al-Khaṭṭāb (2) Abū Ṭāhir al-Faqīh—Abū Bakr al-Qaṭṭān— Ibrāhīm b. He does not comment on the authenticity of the report.. 485/1066)136 (1) Hushaym—Manṣūr—al-Ḥārith—Ibrāhīm [alNakhaʿī]—[. Hāshim—Wakīʿ—Sufyān—ʿĀṣim [b. Abī Bukayr—al-                                                                   132 Ibn Abī Shayba. as he was an adult 84    . Muḥammad]—Muʿādh (b. He records this chain. which ends in a Companion. 28.) Ibn Abī Shayba (d. 9:360. Muṣannaf. 135 136 Bayhaqī has a similar version. 28. also attributed to ʿUmar. according to the editor’s footnote). ʿAbd Allāh b.968. al-Ḥārith—Yaḥyā b. Bahdala]—Abū Wāʾil—ʿAbd Allāh [b.” (La-an uʿaṭṭil al-ḥudūd biʾl-shubahāt aḥabb ilayya min [an] uqīmahā fī ʾl-shubahāt. no.061 (Arabic text: idhā ḥaḍartumūnā fa-ʾsʾalū fī ʾl-ʿahd jahdakum fa-innī in ukhṭiʾ fī ʾl-ʿafw aḥabb ilayya min an ukhṭiʾ fī ʾl-ʿuqūba).Salām b. 235/849)132 Bayhaqī (d. Zahīr [or Zuhayr]—ʿAbd Allāh b. There is likely a link missing in the chain to ʿUmar. Masʿūd.]—ʿUmar b. 133 134 Bayhaqī. though Ṣāliḥ does not transmit directly from ʿUmar. 8:414. ʿĀmir Version 5 “Avoid [sentences of] death and flogging involving Muslims to the extent possible. Bayhaqī has no critical comments.. without commenting on its authenticity. 235/849)134 ʿAbd al-Aʿlā—Burd—Zuhrī Version 7 “That I suspend ḥudūd [punishments] where there is doubt is more preferable to me than imposing them where there is doubt. Masʿūd] Version 6 “Avoid ḥudūd [punishments] wherever there is doubt. ʿAbd Allāh b. Muṣannaf.) Ibn Abī Shayba (d.967 (or bi-kull shubha. Ḥarb—Isḥāq b. Sunan.064 (transposing jald and qatl).963. which is attributed to Zuhrī. 17. Abī Farwa]—ʿAmr b. 17.. Masʿūd] (2) Abū ʿAbd Allāh al-Ḥāfiẓ—Abū ʾl-Walīd al-Faqīh— Muḥammad b. 458/1066)133 (1) Wakīʿ—Sufyān—ʿĀṣim—Abū Wāʾil—ʿAbd Allāh [b. 9:360. 235/849)135 Bayhaqī (d. but with slightly different language. no. 28. Abī Farwa [sic = Isḥāq b. Sunan. no.) Ibn Abī Shayba (d. Shuʿayb—his father [= Shuʿayb b.” (Idfaʿū ʾl-ḥudūd li-kull shubha.” (Idraʾū ʾl-qatl waʾl-jald ʿan al-muslimīn mā ʾstaṭaʿtum. 9:359. no. and ʿUqba b. See Bayhaqī. no. 8:414. Jabal). Ibid.

because Bukhārī determined that Mukhtār b. no.060. uniquely among Sunnī collections. Muḥammad—an associate (ṣāḥib lah)— al-Ḍaḥḥāk b. al-Ḥārith—Muḥammad b. 6:177-91 (al-Ḥasan). saying that the chain is not sound. ibid.]—ʿUmar Version 8 “If ‘perhaps’ and ‘maybe’ apply to [determining liability for] the ḥadd crime. Although this version seems to be a truncated form of previous ones. 139 Bayhaqī. 458/1066)139                                                                                                                                                                                                 before his son al-Ḥasan (d. The content and the chain are the same as the record above. 3098. See Mizzī. al-Ḥārith al-Iṣbahānī—ʿAlī b. eds.. ʿAlī—Sahl b. al-Qāsim al-Zakariyyā—Abū Kurayb—Muʿāwiya b. Hishām—Mukhtār alTammār—Abū Maṭar—ʿAlī—Muḥammad (2) Abū Bakr b. He notes that the report is not sound because Mukhtār al-Tammār is unreliable. 211/826)137 Ibrāhīm b. no. 13:54-56 (Ṣāliḥ). al-Qāsim to ʿAlī b. Tahdhīb al-kamāl. I have counted it separately because its chain. Sunan. Ḥammād—al- Bayhaqī (d.. Hishām—Mukhtār alTammār—Abū Maṭar—ʿAlī—[Muḥammad: marfūʿ[an]] Version 10 “Avoid ḥudūd [punishments]. 137 138 ʿAbd al-Razzāq. Ṣāliḥ b. Nāfiʿ’s narrations are to be rejected (munkar al-ḥadīth). Dāraquṭnī. ʿUmar rather than Dāraquṭnī. Sunan. Cf. though it is improper for the Imām to neglect them [completely].059. Muṣannaf (1972). Ḥayy] —[. this formulation is also the beginning of other versions in Shīʿī collections that attribute the standard version of the saying to ʿAlī. except that the report comes to Bayhaqī through Muḥammad b. Nayl al-awṭār. 7:340-41. 140 Ibid. attributes it to the Prophet via ʿAlī. there is no ḥadd liability.Ḥasan b.. 85    .) Bayhaqī (d. 458/1066)140 Abū Bakr b. Ṣāliḥ—his father [= Ṣāliḥ b. al-Qāsim al-Zakariyyā—Abū Kurayb—Muʿāwiya b.” (Idhā balagha fī ʾl-ḥudūd laʿalla wa-ʿasā fa-ʾl-ḥadd-muʿaṭṭal. 8:414. Bayhaqī rejects this as well. 4:63. Shawkānī.” (Idraʾū ʾl-ḥudūd wa-lā yanbaghī liʾl-imām an yuʿaṭṭil al-ḥudūd. Ḥayyān—Ibn Abī ʿĀṣim—al-Ḥasan b. 169/785-6) was born in the year 100. Bayhaqī too considers this report unreliable. ʿUmar —Muḥammad b.) Dāraquṭnī (d. 17.) ʿAbd al-Razzāq (d. no. Muzāḥim—ʿAlī Version 9 “Avoid ḥudūd [punishments].” (Idraʾū ʾl-ḥudūd.. 385/995)138 (1) Muḥammad b. 17.

Mustadrak al-Wasāʾil. (Shawkānī gives the standard version. ʿUmdat al-qārī. There were no known interactions between them. Qāḍī Nuʿmān lists another version with wording echoing the ḥudūd maxim in his chapter on ḥudūd: “avoid [punishing] the believer as much as you can … (dāriʾ ʿan al-muʾmin mā ʾstaṭaʿt …). based on attributions of this version to Ibn ʿAbbās (by Ḥārithī in Abū Ḥanīfa’s Musnad and by Suyūṭī and later scholars) without having compared the isnād or the content. we know that Qāḍī Nuʿmān most probably copied his version of the maxim from a late 2nd/8th century source used also by Zaydīs. and overlook the faults of the nobles except as regard to ḥudūd [crimes]. Daʿāʾim. discontinue. 20:259. if anything the copyist would have appended that saying from elsewhere. another issue worth mentioning is that this version appears only in the 4th century after the Hijra. See Badr al-Dīn al-ʿAynī.) Qāḍī Nuʿmān (d. copied the ḥadīth from a source common to both Sunnī and Shīʿī (Ismāʿīlī) traditionists. 7:109. 1:135. Versions 7 and 10 (which offers no rationale) uses language that parallels language here (taʿṭīl al-ḥudūd. one might also suppose that Ibn ʿAdī and Qāḍī Nuʿmān. For notes on the difficulties involved in tracing this version to Ibn ʿAdī. 2:463 (variation in Arabic text: adds ḥadd min before ḥudūd Allāh) (cited in Ṭabarsī. The two are in fact different: Ḥārithī never mentions the aqīlū saying. who rejects ḥadīths such as this one with Mukhtār b. The subtext is that ḥudūd punishments are necessary to give effect to God’s prerogative and His will in legislating them in the first place. 21. This version is interesting because it combines ḥudūd-avoidance as in version 9 (or all other versions in truncated form) with a principle that seems to conflict with the rationale offered in versions 2 and 7. and Qāḍī Nuʿmān copied from a limited amount of books available to him—so far as we know from Madelung’s list.. 141 Qāḍī Nuʿmān.Mukhtār b. no. In addition to that explanation. Instead. note 65. who were contemporaries. Finally.” Ibid. and ʿUmar plus the traditionist Zuhrī and jurist Ibrāhīm al-Nakhaʿī) err on the side of caution. 7:345. as Ibn Ḥazm reasons above. Abī Ḥabīb—ʿIkrima—Ibn ʿAbbās (3) Ibn ʿAbbās [no isnād]                                                                                                                                                                                                 Muḥammad Ḥallāq and ʿIzz al-Dīn Khaṭṭāb (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī. 793. see also Suyūṭī. where this Mukhtār appears. Albānī suggests that such a borrowing is possible. Nāfiʿ—Abū Ḥayyān al-Taymī—his father [Saʿīd b. the exponents of the maxim (variously Companions Ibn Masʿūd. Ḥayyān]—ʿAlī—Muḥammad Version 11 “Avoid ḥudūd [punishments] where there is doubt. asserting that Ibn ʿAdī’s record of the ḥadīth matches Ḥārithī’s records from Abū Ḥanīfa in both form and isnād. Irwāʾ alghalīl.911 (in bāb annahu lā yamīn fī ʾl-ḥudūd wa-anna ʾl-ḥudūd tudraʾ biʾlshubahāt)). cancel out. But this is not what occurred. from no work that would have included Ibn ʿAdī’s sources.) The word I have translated as “neglect completely” (yuʿaṭṭil) also means to void. 363/974)141 Ibn ʿAdī (d. 86    142 . In this version by contrast. I have translated it differently there (“suspend”) to reflect its implicit reference to case-by-case individual determinations of ḥudūd liability. no. note 54 and accompanying text. See above. 365/976)142 (1) [no isnād] (2) Ibn Lahīʿa—Yazīd b.” (Idraʾū ʾl-ḥudūd biʾl-shubahāt wa-aqīlū ʾl-kirām ʿatharātihim illā fī ḥudūd Allāh. 1999). 18:26. but he must mean version 7. see above. It may be tempting to think that Ibn ʿAdī or whoever formulated the compound maxim did this through copying it and its attribution to Ibn ʿAbbās from Abū Ḥanīfa’s Musnad by Ḥārithī (same formula). Jāmiʿ. the exponent—said to be the Prophet through ʿAlī—warns against completely neglecting ḥudūd laws. warning that it is better to pardon offenders mistakenly than to punish non-offenders falsely. In those versions. Indeed. muʿaṭṭal). Albānī may have conflated Abū Ḥanīfa’s version with this one. or (permanently) suspend. Albānī. 2:442-43. ʿĀʾisha. Nāfiʿ in the chain for the same reason.

Wasāʾil al-Shīʿa. Mustadrak alWasāʾil.) Ibn Bābawayh (d. 4:53.— Muḥammad Standard Version “Avoid ḥudūd punishments in cases of doubt or ambiguity. 34. no. 146 145 Ibn Bābawayh. nor bail. 21. 340/951-2)145 Ibn Bābawayh (d. nor oaths in ḥadd [proceedings]. 144 According to al-Ḥurr al-ʿĀmilī. ed. 1104/1693) 144 (1) Prophet Muḥammad [no isnād] (2) Muḥammad b.” (Idraʾū ʾl-ḥudūd biʾlshubahāt. 18:26. Muqniʿ (Qum: Muʾassasat al-Imām al-Hādī. 70. Musnad Abī Ḥanīfa. 381/991-2)146 (1) Abū Saʿīd—Yaḥyā b. 1994). Abū Muḥammad al-Asyūṭī (Beirut: Dār alKutub al-ʿIlmiyya. ʿAbd Allāh b. The source of this attribution is unclear. al-Ḥusayn—. 39. 1971). Abī Ṭālib] [no isnād]                                                                   143 Ibn Bābawayh.) Ḥārithī (d.Version 12 “Avoid ḥudūd [punishments] in cases of doubt or ambiguity. 87    . Bishr—Abū Ḥanīfa—Miqsam—Ibn ʿAbbās (2) Amīr al-Muʾminīn [= ʿAlī b.. Muḥammad al-Ḥārith.912). no.” (Idraʾū ʾl-ḥudūd biʾl-shubahāt walā shafāʿa wa-lā kafāla wa-lā yamīna fī ḥadd. ʿAlī b. but there is to be no intercession. 28:48. as Ibn Bābawayh attributes the saying directly to the Prophet in his Faqīh. Farrūkh—Muḥammad b.179.. 437 (cited in Ṭabarsī. Faqīh. 381/991-2)143 Al-Ḥurr al-ʿĀmilī (d. no.

“avert ḥudūd punishments with doubts and ambiguities. I have rendered the ḥudūd maxim as “avoid ḥudūd punishments in cases of doubt or ambiguity” to reflect this dual usage and the fact that jurists determine whether shubha exists in making decisions about ḥadd liability. but more awkward and less communicative of the sense of the maxim.”) Key The following map includes the chains of transmission of the ḥadīth versions of the ḥudūd maxim from collections circulating in the first three centuries (as listed above).” Aversion is the more literal translation (making shubha/shubahāt the active agent). “avoidance” better captures the similar sense of a usage in familiar corpus of American legal maxims.Note on translations: Throughout this chapter. but it obscures the fact that the judge or jurist typically acts as agent and addressee of the maxim.g. Where relevant legal texts clearly intend to focus on shubha as the operative term. I have retained some form of the word “aversion” (e. would be. such as “constitutional avoidance.. Published collection Problematic transmitter (see notes in main body) Unbroken chain/direct attribution Broken chain/indirect attribution Bold Name Significant figure (discussed in the text and notes)       88    . ḥadd-averting ambiguity). Fourth/tenth and fifth/eleventh century chains are included only if discussed in the text and otherwise not represented in the previous collections directly. (Alternative translations that are more literal. shubahāt) as “doubt” or “ambiguity” to cover two senses in which jurists use the term: uncertainties concerning questions of fact (“doubt”) as well as law (“ambiguity”).” or even “use doubts and ambiguities to avert ḥudūd punishments.” whereby judges are to avoid the serious consequences of deciding cases on the basis of constitutional doctrines where they can decide them on other grounds. in addition. I have translated shubha (pl. Darʾ is given alternately as “aversion” or “avoidance. he or she is to recognize the legally cognizable types of shubha outlined in the legal texts and avoid imposing ḥudūd punishments where they are present.

] al-Rabīʿa ʿAbd al-Aʿlā ʿAbd al-Salām Hannād Hushaym Ibn Fuḍayl Thawrī Muḥammad b. 5. [Abī] Farwa Burd Sufyān al-Ḥārith Ḍaḥḥāk Ibn Lahīʿa Miqsam Muʿāwiya b. Ḥayyān Tirmidhī (d. Muḥammad Muḥammad b. Ḥammād Muḥammad [b. 458) Versions 4. al-Jarrāḥ Yaḥyā b.Spread of the Ḥudūd Maxim as a Ḥadīth (Isnād Map) Saʿīd b. 7 Abd al-Razzāq (d. 8 Ibn Abī ʿĀṣim Abū Saʿīd ʿAlī b. 340) Standard Version Dāraquṭnī (d. Abī Saʿīd ʿUrwa Abū Wā’il [anonymous] ʿIkrima Abū Maṭar Saʿīd b. 235) Versions 2. 363) Version 12 Ibn ʿAdī (d. 10 89    . 303) Version 1 Qāḍī Nu‛mān (d. 4. ʿAlī ʿAbd al-Raḥmān b.) Version 12 Abū Bakr b. Nāfiʿ Manṣūr al-Aʿmash Ḥammād [anonymous] Ibrāhīm b. Abī Ḥabīb Mukhtār al-Tammār Abū Ḥayyān al-Taymī Yazīd b. 38 Standard Version Bayhaqī (d. Farrūkh Ibn Abī Shayba (d. Faḍl ʿAmr b. al-Qāsim al-Zakariyyā al-Ḥasan b. 3. 9. Ḥayyān Ibrāhīm b. 365) (according to ʿAynī et al. Sufyān Ibn Mājah (d. 279) Version 2 al-Ḥasan b. Hishām Abū Kurayb al-Mukhtār b. 6. Ziyād Isḥāq b. ʿUmar Muḥammad b. 385) Version 9 Abū al-Walīd al-Faqīh Abū Ḥāzim al-Ḥāfiẓ Ibn Bābawayh (d. Bishr Sahl b. 211) Versions 2. al-Ḥārith al-Ḥārithī (d. al-Aswad ʿAbd Allāh b. Shuʿayb ‛Āṣim Yazīd b.

Ibn al-Mundhir (d. 211/826). Hāshim al-Qummī (d.1 Jurists of the succeeding generations followed suit. jurists like Ibrāhīm al-Nakhaʿī (d. the Muṣannafs of ʿAbd al-Razzāq (d. 1986). For further details. 90    3 2 . weight of authority. See Ibn al-Mundhir.2 By the turn of the 3rd/9th century. That investigation revealed that perhaps within decades after the Prophet’s death. and the Jurisprudence of Doubt I.698 (with the following chain: Thawrī—Ḥammād—Ibrāhīm [al-Nakhaʿī]—[anonymous]). we can see in the ḥudūd maxim a principle so wellentrenched that it features even in popular lore as celebrated as One Thousand and One                                                                   1 Ibrāhīm cites the maxim on anonymous authority in the following 2nd/8th. Avoidance: Law.. works by both proto-Sunnī and Shīʿī jurists (including Shāfiʿī. by the end of the first century. one scholar announces the maxim as one of few principles on which jurists had reached consensus. 10:166. 132 (wa-ajmaʿū ʿalā darʾ al-ḥadd biʾl-shubahāt).g. 303 (with the truncated isnād (al-Aʿmash—Ibrāhīm [al-Nakhaʿī]). ed. and Ibn Bābawayh). al-Ijmāʿ. 235/849). and standing in the early Muslim scholarly community. ʿAbd al-Razzāq (d. 211/826) and Ibn Abī Shayba (d. That is. 18.and 3rd/9th-century sources: Abū Yūsuf (d. see Chapter 1. Muṣannaf. Society. Qaḍāyā Amīr al-Muʾminīn on the Shīʿī side). no. Mālik. as well as works recording the judgments of earlier authorities in both camps (e. Muṣannaf.CHAPTER 2 Ḥudūd Imposition vs. as appears in Ibn Abī Shayba’s version below). with leading scholars in every major center of the growing Muslim empire invoking the principle by the mid-2nd/8th century. ʿAbd Allāh ʿUmar al-Bārūdī (Beirut: Dār al-Jinān. 9:359. 319/930) includes the ḥudūd maxim in his slim volume compiling some 765 matters on which jurists had reached consensus by the end of the 3rd/9th century. no. Qāḍī Nuʿmān. 182/798).3 And thereafter. Introduction Chapter One focused on ḥudūd avoidance because we were interested in the ḥudūd maxim itself—its provenance. 28. the maxim had become so central to criminal law jurisprudence that. 235/849) on the Sunnī side. Abū Ḥanīfa and his students. ca. note 34 and the Appendix. Ibn Abī Shayba (d. Kitāb al-kharāj. and records of ʿAlī’s judgments collected by Ibrāhīm b.966 (with the following chain: Ibn Fuḍayl—al-Aʿmash—Ibrāhīm [alNakhaʿī]—[anonymous: kānū yaqūlūn]). 96/717) could refer to it as axiomatic. mid-3rd/9th century).

deeds of karāma. social or personal”). Furthermore. Nishwār al-muḥāḍara. Devin Stewart. and that juristic                                                                   4 See Alf layla wa-layla. The very fact that jurists articulate and even exaggerate ḥudūd avoidance through the maxim points to a wider socio-political backdrop of actual ḥudūd enforcement and other criminal law policies against which the maxim was pushing or perhaps balancing. for one. Ibn Ḥazm. political. 252-54 (recording the story wherein Abū Yūsuf used the maxim to benefit Hārūn al-Rashīd’s family). “al-Tanūkhī.Nights and other works by storytellers with a penchant for recounting tales of deliverance from difficult straits. “Muḥammad b.” 208-09: recounting a story involving Basran governor Khālid al-Qasrī’s (r. it stands to reason that Ibn Ḥazm’s view is representative (if more sophisticated) as that of Dāwūd b.4 This focus on the ḥudūd maxim highlights just one side of the story. See also Tanūkhī (d. and his Ẓāhirī counterparts affirmatively opposed it. See Muḥammad alShaṭṭī. Muḥallā. d. Fähndrich. 12:57-63. Ḥanbal. art. himself a judge at one point. we know that not every jurist championed the maxim. 99-160 (highlighting textualist jurisprudential stances). was the one known for his affinity to tales about deliverance from thorny situations. See Ibn Ḥazm (d. none of them mentioning shubha and many taking stances opposite to those of jurists who supported the ḥudūd maxim). See H. Dāwūd al-Ẓāhirī’s Manual of Jurisprudence: al-Wuṣūl ilā Maʿrifat al-uṣūl. 10:192 (noting that most of the works attributed to him were “compiled under a guiding principle. namely …. night 298 (cited and retold in Fierro. 105-120. 1330/[1911-2]) (collecting legal opinions attributed to Dāwūd from various works. be they financial. One theory has it that the maxim emerged from and was subject to exploitation by the elite. see Chapter 4. 456/1064). a late spokesperson for the Ẓāhirī school. of salvation from difficult situations.” EI2. This courtier. Though we do not have records of their specific criticisms of the ḥudūd maxim. cf.5 These observations raise questions about the social and political context that made it necessary for jurists to invoke—or oppose—the maxim. outlines his firm opposition to the ḥudūd maxim on grounds of authenticity and a textualist jurisprudential theory. ʿAlī and his son—founders of Ẓāhirism—who took a similar textualist approach to law overall. took a fairly ambivalent stance toward it. 91    5 . For a more detailed discussion of the nature of the Ḥanbalī and Ẓāhirī stances to the maxim on jurisprudential grounds. Risāla fī ʾl-madhhab al-Imām Dāwūd al-Ẓāhirī (Damascus: Maṭbaʿat Rawḍat al-Shām. 2002). Aḥmad b. 126/743) invocation of the ḥudūd maxim). “When Lawful Violence Meets Doubt. Bernard Weiss (Leiden: Brill.” in Studies in Islamic Legal Theory. 384/994). ed.

Ibid. I will argue that.” who saw the “as much as you can” wording of the ḥadīth version of the ḥudūd maxim subject to too few constraints and too much abuse by the elite by the mid-2nd/8th century. a high degree of moral anxiety on the part of jurists responding to shifting social and political developments in the young Muslim community. “When Lawful Violence Meets Doubt. and an opposite trend toward ḥudūd enforcement. We might also gather that there was a fundamental conflict between tendencies to invoke the maxim and thereby avoid ḥudūd punishments.” 236. Fierro counts Ibn Ḥanbal amongst the scholarly “pious opposition.opposition to it was meant to curb the abuse. 92    .                                                                   6 Fierro.6 From that view. there was no one-to-one correspondence between it and support for ḥudūd avoidance. while social status played a major role in the shaping of ḥudūd laws and what we may call a “jurisprudence of doubt” expressed through the ḥudūd maxim. we might get the impression that Ibn Ḥanbal or Dāwūd al-Ẓāhirī’s insistence on ḥudūd enforcement was particular to their concern with providing a counter-weight against elite jurists who favored ḥudūd avoidance in order to benefit their high-status peers during the first three centuries of Islamic rule. This anxiety stemmed from the juristic community’s desire for subservience to divine legislative will. Another factor played a significant role— namely. But does this depiction accurately reflect ḥudūd jurisprudence and the concerns of the community who articulated the maxim? I seek to complicate this picture by investigating where ḥudūd avoidance fell along the spectrum of ḥudūd enforcement versus avoidance in the socio-political context of Umayyad and early ʿAbbāsid rule. which they pursued by forwarding certain moral imperatives presented in the divine law in the face of political pressures and epistemological doubts when it came to criminal law.

” through it. They pursued this later strategy through the ḥudūd maxim and what I have termed “doubt jurisprudence” as a way of guiding or critiquing the admittedly wide jurisdiction of the state over matters of public law and public safety through its police power and duty to enforce criminal law.The following discussion describes contests between socio-political values—as presented in the literary and historical sources—and moral-legal ones—as presented in the early legal sources. the great compromise reached between state and juristic authorities over these same issues of morality and authority by the 3rd/9th and 4th/5th centuries. we observe the emergence of conceptual discussions about a “public sphere. I first present the competing values surrounding issues of morality and authority in early Islamic societies then describe the competing tendencies in juristic arenas toward ḥudūd enforcement and ḥudūd avoidance. they also set limits on the criminal sanction in the public sphere through defining the contours of ḥudūd laws and expanding the role of doubt. II. The jurists regulated the moralprivate sphere. In reviewing the historical reports of Islamic criminal law and legal theory. Muḥammad sought to establish a new legal order 93    . and encouraged members of the community to be discreet about their criminal violations—taking it up with God through repentance or otherwise. jurists propose a pragmatic solution to the contests between them and the state over the authority to define and enforce criminal law. Competing Values: Morality and Authority A. I end by presenting. through the lens of criminal law. Egalitarianism and Judicial Subservience The earliest Muslims exhibited a keen concern with adhering to the dictates of what they considered divine law.

1997) (presenting a narrative from Shīʿī sources). no. Fred Donner. A History of Islamic Societies (Cambridge: Cambridge University Press. Aside from establishing an “uncompromising monotheism” and the Prophet’s authority as apostle of God. the contours of which are marginal to the discussion here.8 As expressed in an important ḥadīth that we will call the ḥuqūq tradition. [1955-6]). ʿAlī Ibn Ḥajar al-ʿAsqalānī. 1981). For textbook historical accounts. see Wilferd Madelung. New York: Cambridge University Press. Sunan. ed. London: University of Chicago Press. See Bukhārī. 69. 4:13. see Ira Lapidus. Muḥammad Fuʾād ʿAbd al-Bāqī ([Cairo]: Dār Iḥyāʾ al-Kutub al-ʿArabiyya. 4296. ed. 20. at Islam’s inception. 64:12. nos. Ṭāhā ʿAbd al-Raʾūf Saʿd. 58:13. Marshall Hodgson. no. their selection and circulation of these texts indicate that this early community took this duty to obey Islam’s moral and legal directives seriously. See also Muslim. Fatḥ al-bārī bi-sharḥ Ṣaḥīḥ al-Bukhārī. 47:3. The Prophet and the Age of the Caliphates (Essex: Pearson Education. In other words. Patricia Crone. 48-51 (with variations). Ibn Mājah. 3:32.”7 promising eternal reward. 33:71. see also 4:59 (and adding instructions to obey “those in authority over you: wa-ulī ʾl-amri minkum”). 24:52. 10 For a brief description. no. in addition to Kennedy (ibid. The Succession to Muḥammad: A Study of the Early Caliphate (Cambridge. Ṣaḥīḥ. “the ‘right’ (ḥaqq) of God vis-à-vis His servants is that they worship Him and do not associate any partners with Him. first published 1961).). 8 9 See Qurʾān.”9 These texts articulate the desire of the young community to submit to the will of God. Muḥammad ʿAbd al-Muʿṭī ([Cairo]: Maktabat alKulliyyāt al-Azhariyya. Ṣaḥīḥ. The Venture of Islam (Chicago. 24:54. himself as Prophet and exponent of Islamic ideals. 7:298-99. 48:17.11 The duty to obey the law was taken as a moral calling and of                                                                   7 See Qurʾān. first published 1988). 132. 2856 (fa-inna ḥaqq Allāh ʿalā ʾl-ʿibād an yaʿbudūh wa-lā yushrikū bih shayʾan wa-ḥaqq al-ʿibād ʿalā ʾllāh an lā yuʿadhdhib man lā yushrik bih shayʾan). Narratives of this earliest history are a matter of considerable scholarly debate. 49:14. Tirmidhī. 2002. 1:58-59. 47. 1978). 1974. which proceeds from areas of broad agreement in early Islamic history. in Aḥmad b. Sunan.with God as legislator. 5:668-69. were both political and religious leaders. 8:1. 12:8-9. 5:92. see Hugh Kennedy. Early Islamic Conquests (Princeton: Princeton University Press. 1:188-230. and the ‘right’ of individuals [vis-à-vis] God is that whoever refrains from associating partners with [Him] will not be punished. For alternative accounts. 2645. Several verses in the Qurʾān instruct Muslims to “obey God and his Messenger. 46. as represented by the Prophet and others in positions of authority who. Muṣṭafā Muḥammad al-Hawwārī.10 the major feature of the new order was its emphasis on certain moral precepts. 94    11 . 1986).

see Hossein Modarressi. apostasy. see Rudolph Peters and Gert J. to be illegal because they threaten particular moral values in the social sphere that Islam set out to promote. (1993): 5-39. Even traditionist-jurists like Dāwūd al-Ẓāhirī—who we do not know as typically accustomed to focusing on rationales underlying the law—explain that prohibitions                                                                                                                                                                                                 Roman. and fornication (zinā). 1961). 2002) (testing a hypothesis of Roman borrowing through examining the institution of tribal clientage. On the generation of reports about stoning as a Qurʾānic punishment.g.13 Accordingly.”). which they labeled ḥudūd crimes. 6:144. the Qurʾān identifies certain deeds as serious transgressions against key moral values.” Die Welt des Islams 17. On the post-prophetic designation of the sanction for wine-drinking. and Islamic Law: The Origins of the Islamic Patronate (Cambridge: Cambridge University Press. As later commentators saw it. “Punishment in Islamic Law. “Early Debates on the Integrity of the Qurʾān: A Brief Survey.” 203-34. Qurʾān. 179-81. 95  13   . J. Textualist criticisms now drive major points of controversy about the legal status of the death penalty as a sanction for apostasy and adultery. 12 Scholars acknowledge that the Qurʾān does not designate punishments for every act it censures. female and male [alike]. the contours of which were considered to be specifically designated by God. ed.course encompassed criminal law. highway robbery. cautioning against ignoring the criminal laws merely out of lenient attitudes that amount to disregard for the dictates of the law. and Zoroastrian Writings on Early Islam (Princeton: Darwin Press. Provincial. Jewish. The Qurʾān itself sets out punishments for many— though not all—of these acts. Umm. 24:2 (The passage refers to zinā: “As for those who commit zinā. 1/4 (1976-1977): 1-25. Seeing Islam as the Others Saw It: A Survey and Evaluation of Christian. see Muḥammad b. and let a party from the community be witness to the punishment: waʾl-zāniyatu waʾl-zānī fa-ʾjlidū kulla wāḥidin minhumā miʾata jaldatin wa-lā taʾkhudhkum bi-himā raʾfatun fī dīni ʾllāhi in kuntum tuʾminūna biʾllāhi waʾl-yawmi ʾl-ākhiri waʾl-yashhad ʿadhābahumā ṭāʾifatun min almuʾminīn. severely censuring those who commit acts such as murder. walāʾ). the Qurʾān mentions no punishment for apostasy or wine-drinking. 5-6. though jurists count them as ḥudūd matters.” Studia Islamica 77. Kamali. And it insists that the punishments be enforced where warranted. and stoning is not a Qurʾānic punishment for adultery. Specifically. “Apostasy in Islam. On the Ḥanafī and Shāfiʿī objections to counting apostasy as a death eligible crime. see also Robert Hoyland. flog each of them one hundred times.12 to signal the gravity of each act as a moral offense. e. scholars understood these transgressions. Muḥammad Zuhrī al-Najjār ([Cairo]: Maktabat al-Kulliyyāt al-Azhariyya. 1997) (presenting translations of contemporary source materials by observers of Islam outside of the community together with analyses of the sources). See. theft. De Vries.. wine-drinking. and let not compassion for them stay you in a matter of obedience to God if you believe in God and the Last Day. Idrīs al-Shāfiʿī.

as seen through the very limited authority that tribal leaders commanded. 16 15 Marlow. Islamic Legal Philosophy: A Study of Abū Isḥāq al-Shāṭibī’s Life and Thought (Islamabad: Islamic Research Institute. nasab [or ʿirḍ]. 27. Mūsā al-Shāṭibī. Muḥammad Muḥyī al-Dīn ʿAbd al-Ḥamīd ([Cairo]: Muḥammad ʿAlī Ṣubayḥ. and impugning honor..” Comparative Studies in Society and History 28. but the gist of his understanding is shared by most jurists. property— commonly referred to as the five “objectives” or “essential principles” of Islamic law (maqāṣid al-sharīʿa or al-ḍarūriyyāt al-khamsa). Risāla. ʿaql. taking private property. the new order placed a heavy accent on a type of egalitarianism that stressed preference on the basis of moral excellence rather than bloodlines and wealth. 2 (1986): 334-55. New York: Cambridge University Press. They typically frame the impetus of criminal laws both negatively as deterrents and positively as mechanisms promoting these same values—the preservation of life. honor. Miqdād al-Suyūrī. See. ed. and māl). [1969-70]). sanity (or intellect). 60-63 (listing the five as nafs. dīn. 17 Patricia Crone. 19-20. Charles Lindholm. Naḍd al-Qawāʿid. 5 note 17). “Kinship Structure and Political Authority: The Middle East and Central Asia. 1980). 1977). 334-35 (cited in Marlow. 4-5 (noting broad types of egalitarianism in Arab monotheism along with Arab tribalism—which was fiercely competitive in the face of the lack of formal institutional hierarchies—marking acquired merit (ḥasab) and inherited merit or genealogy (nasab) as organizing principles and containing social and wealth inequalities that could be challenged by show of individual merit). 2:2ff (kitāb al-maqāṣid). Hierarchy.against fornication. respectively. religion.14 Dāwūd’s formulation is in the negative vocabulary of deterrence. cf. 270/883-4). and defamation were legislated to deter against mixing bloodlines. Hierarchy and Egalitarianism. al-Muwāfaqāt fī uṣūl al-aḥkām. quoted by Shaṭṭī.15 In addition.17 Hierarchy came through competition. theft. Arabs drew prestige from genealogical rank when coupled with meritorious acts affected to demand honor                                                                   14 Dāwūd al-Ẓāhirī (d.g. Muhammad Khalid Masud. ʿUyūn al-masāʾil. e. Slaves on Horses: The Evolution of the Islamic Polity (Cambridge. Abū Isḥāq Ibrāhīm b.16 The cultural context in which Islam emerged was one in which tribal values championed a type of egalitarianism. 2. 96    .

1980). see Roy Mottahedeh.” International Journal of Middle Eastern Studies 7 (1976). Tauris. the Qurʾān. rev’d ed. 2:247. 97    . surely. art. see also Roy P.B. (London. 2-3 (citing Qurʾān. 98-104.” See discussion in Hodgson. Islamic historical sources recount attempts to replace the old preIslamic Arabian formula for tribal egalitarianism of lineage plus individual prowess with a Qurʾānic egalitarianism of piety through governing policies that tended to increase social mobility. Hierarchy. “The Shuʿûbîyah Controversy and the Social History of Early Islamic Iran. Venture. New York: I. 49:13. Hodgson refers to jurists who share these sentiments as the “piety-minded. and 16:75. no matter how much they may elevate their social station. 18:47. between Arabs and non-Arabs. 3:238.. 2001 (orig. Princeton: Princeton University Press.18 Against this backdrop. 21 20 See ibid. Indeed. the most noble of you in the sight of God is the most God-conscious: yā ayyuhā ʾl-nāsi innā khalaqnākum min dhakarin wa-unthā wa-jaʿalnākum shuʿūban wa-qabāʾilatan litaʿārafū inna akramakum ʿinda ʾllāhi atqākum.19 Several other verses stress that “sons and wealth” will not elevate people’s spiritual station. attempted to bolster the spirit of egalitarianism but replace worldly-social criteria for preference with spiritual-moral criteria: O people! We have created you from a male and female and fashioned you into peoples and tribes that you may know one another. 32:18.and respect.” promising them great rewards. 49:13 for the first category.21 Corroboration of the historical description of an egalitarian bent in the                                                                   18 See eds. And other verses praise those who “believe and do good works. Loyalty and Leadership. and other types of social hierarchies.” EI2. 4:95 for the second). See Marlow. many Muslims took these verses to unquestionably require broad-stroked egalitarianism in contrast to the pre-Islamic tribal structures and to the distinctions that quickly emerged in early Islamic society—distinctions amongst Arab tribes. 161-82. “ḥasab wa-nasab. 26:88-89. 19 For a history of exegetical commentaries on this verse.20 Further. 1:241-79. Mottahedeh.

Hodgson. who possessed political acumen and were capable of mobilizing tribal support. Social Status and Political Power The lofty ideals of pursuing social-moral values undergirding ḥudūd laws and spiritual-moral egalitarianism remained largely aspirational. led to his assassination. Marlow. al-Bayān waʾl-tabyīn.23 It also led to a vast amount of social unrest and political restructuring.earliest Muslim community is found in reports revealing a negative reaction to reversals of governing policies on its basis. revolution. in that he rewarded early converts among the Prophet’s Companions and others. “The Murder of the Caliph ʿUthmān. Patricia Crone (Princeton: Darwin. 117 (naẓarāt fī jadaliyyāt al-ʿilāqa bayn al-namūdhajayn alsiyāsiyyayn al-taʾrīkhiyyayn al-Īrānī al-qadīm waʾl-islāmī al-wasīṭ). see Reuben Levy. 2nd ed. 1984). 1984). ed. Marlow. 14 (citing Jāḥiẓ. and early-comers of lesser tribal statute who were opposed to any diminution of their independence or reduction of the ‘Islamic’ privileges acquired by them at the time of the conquest. Muḥammad first advanced them and the later literary sources depict the second and fourth caliphs. 15. as policies on its basis seem to have elicited no deep grievances in the way that the shift back to tribal preference did. idem.22 But derogation from these principles in the second half of the reign of the third caliph. Rasāʾil). see Kennedy. The Social Structure of Islam. ʿUthmān. 6975 (ʿUthmān and the beginnings of internal strife). Age of the Caliphates. Once Muʿāwiya—who saw himself as the rightful successor to ʿUthmān and avenger of his murder—took over the caliphate from ʿAlī. B. al-Umma waʾl-jamāʿa waʾl-sulṭa (Beirut: Dār al-Iqraʾ. … [In part. For discussions of both ʿUmar and ʿAlī’s social-egalitarian bent as manifested in their discomfort with allowing “Persian” upper-class habits and dress. Riḍwān al-Sayyid. For anecdotes quoted from early sources recounting ʿUmar’s egalitarian policies. Lawrence Conrad. [1st ed. to have insisted on egalitarian principles in their governmental policies and moral exhortations. “the                                                                   22 ʿUmar was the first to establish the doctrine of preference based on “Islamic priority (sābiqa)” for those whom Martin Hinds has called “early comers” (see below) in their conversion to Islam. For broader context recounting ʿUthmān’s policies. Hierarchy. 261-62. Jere Bacharach. 1957). Hierarchy. ʿUmar and ʿAlī (who was also the first Imām for the Shīʿa) especially. Venture of Islam. 52-53 (“The main conflict in the time of ʿUthmān was … between interests rooted in traditional patterns of leadership and privilege which had emerged in the time of Muḥammad.”). 1:212-17. see Michael Morony. Abū Bakr and ʿUmar. Iraq after the Muslim Conquest (Princeton: Princeton University Press.” in Studies in Early Islamic History. For a study of the factions that aligned against ʿUthmān in the lead up to his murder. see Martin Hinds. and unrest. 1996): 29-55. 98    23 .: The Sociology of Islam (1931-1933)] (Cambridge: Cambridge University Press. leading to regicide.] [t]here was a developing conflict within the provinces between the re-emerging old-style tribal leaders. 55-57. Historians have argued that there was considerable community buy-in and support for this “Islamic” egalitarian ideal.

ed. insisted on a concept of precedence by some combination of moral-spiritual excellence and familial ties to the Prophet. Berkey.25 Predictably. 1993). such as the proto-Imāmīs amongst the ʿAlids.opportunity for social equalising” on the basis of piety criteria came to an end. like the group that came to be known as the Zaydīs. 600-1800 (New York: Cambridge University Press. see Kennedy. see also ibid. and spread of the Ibāḍī community from Basra to other parts of Arabia and North Africa in the 7th/13th through 9th/15th centuries). supported by political and military structures built on these same bloodlines and tribal loyalties. 26 On the history and changes in political and legal doctrine of the Khārijīs. Etan Kohlberg. N. esp. 49-72 (describing how differences of status amongst Arabs became greater than what they had been in the past). Religious Trends in Early Islamic Iran (Albany.A. New York: Cambridge University Press. Religious Trends. see generally Hossein Modarressi. Jonathan P.” in Belief and Law in Imāmī Shīʿism (Aldershot. 1 (1971): 51-130. 1991). 82-123 (Umayyads). 1-21. and that obedience to them was due by virtue of prophetic designation). “The Arab Conquests and the Formation of Islamic Society. 1988).. which included thick notions of spiritual-moral excellence. 25 For standard overviews.” in Studies on the First Century of Islamic Society. who came to adopt a more quietist attitude as Ibāḍīs. 14 notes 3-4. Madelung. Wilkinson. this turn was not absolute or without challenge. “The Ibádites in Arabia and Africa.” Cahiers d’histoire mondiale 13. On early Imāmī political and theological doctrines surrounding the imāmate. Roman.H. 124-199 (ʿAbbāsids). 54-76. pp.27 And still others. 77-86. Part II (emergence of Islam through the ʿAbbāsid Revolution). 89). Hierarchy. See also Wilferd Madelung. The Imamate Tradition of Oman (Cambridge. Provincial and Islamic Law. 1-17. (citing Crone. advanced a notion of strict adherence to God’s law (as they defined it) as the qualification for leadership. held that leadership should devolve to a competent leader from the Prophet’s family who exhibited some degree of spiritual-moral excellence and was willing to assume leadership by way of revolution                                                                   24 Ibid. 51-80 (Part I: presenting the origins. Hampshire: Variorum Reprints. Ira Lapidus. 25-53. Age of the Caliphates.24 Muʿāwiya adopted a structure of political governance based on kinship ties and inaugurated the first of many dynasties based on bloodlines. 1982). idem. see also the sources mentioned in Marlow. Crisis and Consolidation in the Formative Period of Shīʿite Islam (Princeton: Darwin Press. John C. The Formation of Islam: Religion and Society in the Near East.” in Belief and Law.Y. G. 1987). 99    27 . development.26 Others. like the puritanical Khārijīs who broke off from the supporters of ʿAlī. esp. 2003). “Evolution of the Shīʿa. 29-31 (detailing views of 2nd/8th “moderate” Shīʿī scholars insisting that the Imāms were pious. learned men (ʿulamāʾ abrār atqiyāʾ) without a divine claim to authority. “Imām and Community in the Pre-Ghayba Period.: Bibliotheca Persica. Some groups. Juynboll (Carbondale: Southern Illinois University Press. see Tadeusz Lewicki.

Ibn alJawzī (d. Mottahedeh. 3:1163ff. 362ff. 1:136-65(listing the multiple rebellions within the first two centuries of Islam’s rise). 356/967). 1975). Shboul. Justice. Taʾrīkh al-rusul waʾl-mulūk. see generally Haykel. Cf. Religious Trends. 597/1200). 2007). The Birth of Sectarian Identity in 2nd/8th century Kūfa: Zaydism and the Politics of Perpetual Revolution (Princeton University: unpublished PhD dissertation.” EI2. 1992) (the Prophet’s biography through the ʿAbbāsid period). the Umayyads and their successors treated potential political adversaries harshly. A. al-Muntaẓam fī tawārīkh al-mulūk waʾl-umam. On developed doctrines. Each reign was marked by efforts to maintain control in the face of competing claims to leadership.30 Part of the struggle for power involved harshly punishing those who would disturb the existing societal order and thus challenge the political leadership through crime. Islamic Historiography: The Histories of Masʿūdī (Albany: State University of New York Press. art. Aḥmad Ṣaqr ([Qum?]: alMaktaba al-Ḥaydariyya. Revival and Reform in Islam. 345/956). but arguing that the work does contain a “Shīʿī critique”). rebellion. Al-Masʿūdī and His World: A Muslim Humanist and his Interest in Non-Muslims (London: Ithaca Press. 310/923). For an excellent.29 As a result. Azfar Moin. 4. 1423/[2002-3]) (recording the ʿAlīd revolts against the Umayyads and ʿAbbāsids). 1989-2007) in 40 vols. Any perusal of the historical chronicles gives the impression of a series of political intrigues and power struggles. ed. Punishment (drawing heavily on instances presented in Ibn al-Jawzī’s 100    . see Marlow. 86-92.and rebellion. Muḥyī ʾl-Dīn ʿAbd al-Ḥamīd (Beirut: al-Maktaba al-ʿAṣriyya.31 And within that context. “Partisan Dreams and Prophetic Visions: Shīʿī Critique in Masʿūdī’s History of the ʿAbbāsids. Muḥammad ʿAbd al-Qādir ʿAṭāʾ and Muṣṭafā ʿAbd al-Qādir ʿAṭāʾ (Beirut: Dār al-Fikr. punishments were                                                                   28 On early Zaydī political and theological doctrines. Najam Haider. 330/941). see Madelung.” Journal of the American Oriental Society 127. See Tarif Khalidi. esp. 19-20. see Lange. Other standard examples include Ibn Jarīr al-Ṭabarī (d. Maqātil al-Ṭālibiyyīn. “Imāma. 1960-1977) (English translation: History of al-Ṭabarī (Albany: State University of New York Press. [1965-1966]) (ʿAbbāsid period). see also Abū ʾl-Ḥasan al-Ashʿarī (d. Yūsuf Asʿad Dāghir (Beirut: Dār al-Andalus.28 These factions remained a constant threat to each ruling authority so long as they laid claim to leadership. see Madelung. or otherwise. Loyalty and Leadership.. covering pre-Islamic history through the year 301-2/915). 1979). Hierarchy. 4 (2007): 415-28 (cautioning against an outright Shīʿī designation as that community’s theological views had not solidified by that time. ed. concise summary of the various religio-political tendencies discussed in brief here. ed. For a brief discussion. 120-45. ed. this often involved violence against individuals who posed political threats. 1990). Political opponents and petty criminals were put to death and punished in other severe ways never authorized by the Islamic sources. Masʿūdī (d. Ahmad M. See especially Abū ʾl-Faraj al-Iṣbahānī (d. 40. Maqālāt al-Islāmiyyīn waʾkhtilāf al-muṣallīn. ed. Masʿūdī has been understood to represent a subtle Shīʿī critique of ʿAbbāsid rule. Muḥammad Abū ʾl-Faḍl Ibrāhīm ([Cairo]: Dār al-Maʿārif. H. Murūj al-dhahab wamaʿādin al-jawhar. 31 30 29 For a vivid discussion of examples from the central Islamic lands in the 5th/11th through 7th/13th centuries.

Religion and Politics under the Early ʿAbbāsids: The Emergence of the Proto-Sunni Elite (Leiden: Brill. see M. T. ibid.” 55-56. idem. 1997). Religious Trends. 156 (noting that Abū Yūsuf sought to describe the caliph’s “discretionary powers” in matters of financial and other spheres of administration). esp. 93-116 argues that as social hierarchy prevailed. both of whom had close relations with the second ʿAbbāsid caliph Abū Jaʿfar al-Manṣūr (r. the ʿUlamāʾ. 62-64 (describing Khārijī “fanaticism” and “quietism” or “moderation. 136-158/754-775) and his nephew ʿĪsā b. Hierarchy. 573-82. see the sources cited above. 141-45. 2004). Mūsā who governed in Kufa. and Ibn Abī Laylā (d. 1 (1997). see Peters. The History of an Islamic School of Law: The Early Spread of Ḥanafism (Cambridge. 17ff and passim (discussing the role of state patronage in early Muslim societies in support of the juristic endeavors especially in Iraq toward the spread of the school later known as Ḥanafism). See also Nurit Tsafrir. and the Law: Defining the Role and Function of the Caliph in the Early ʿAbbāsid Period. “The Ibádites. Aside from the well-known example of Abū Yūsuf and Hārūn al-Rashīd mentioned above. In most sectors of Umayyad society. For further references on Zaydī activist and quietist doctrines. Lewicki. 77-86 (Zaydī doctrine). social hierarchy triumphed and quietism set in until the ʿAbbāsid revolution toppled the regime only to replace it with a near-identical but more diffuse political order brought to power on the strength of an ʿAlid religious claim. it was perhaps inevitable that their claim on social privilege would find its way into the law. 1993). but the basic set-up was similar: the elite were given preferential treatment and those with competing religious claims to leadership were treated harshly. Norman Calder.meted out on the basis of political threat or disfavor. 44-68. note 28. quietism set in. whose theological doctrines required rebellion before settling down in later periods. 144/761). as recorded by Wakīʿ.. Jurists—part of the elite. ibid. “The Caliphs. 557-82. 101    33 . For a discussion and further examples.” and the rapprochement of the latter group [which came to be known as Ibāḍīs] with the Umayyad caliph ʿAbd al-Mālik).: Islamic Legal Studies Program at Harvard Law School.. 134. Akhbār al-quḍāt. 32 Marlow. See Madelung. 148/765).32 The regimes had changed. This characterization is qualified in that quite a number of jurists worked closely with the government as judges and caliphal advisors. two prominent examples are Ibn Shubruma (d. Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press. 33-38. * * * Given the socio-political influence of the elite. Mass. 512-17. though largely separate from government33—shaped marriage laws in ways that                                                                                                                                                                                                 Muntaẓam). For a list of “Islamic” punishments as distinguished from “non-Islamic” ones. 54-76 (Khārijī egalitarianism). 70-118 (describing close interactions between scholars and early ʿAbbāsid caliphal officials). 90. Qasim Zaman.” Islamic Law and Society 4. just as absolution from punishment was doled out on the basis of political favor. 1-36 (pointing out that the caliph had a certain measure of judicial authority to interpret or choose particular interpretations of the law during this early period). Exceptions were some Khārijīs and Zaydīs. Crime and Punishment.

see ibid. Hierarchy. note 78. see also Marlow. Hierarchy. the Qurʾānic values of egalitarianism centering on preference by moral excellence became spiritual ideals reserved mostly for the next world. and the idea of divine favor bestowed on some individuals or peoples over others). As for this world.facilitated maintaining the bloodlines and status hierarchies that formed the basis for political patronage and social privilege. 27-28. social superiority of men over women.. For a similar conclusion. with a differential eye..35 In essence. A Social History of the ʿAlīd Family from the Eighth to Eleventh Century (unpublished D. Hierarchy and Ḥudūd Laws A significant manifestation of the accommodations of status that resonated in the ḥudūd context was the prevalence of the aqīlū “overlook” saying. see Teresa Bernheimer. calling on people to “overlook the faults of the nobles. power. even under the law. C. preference in the ruling classes tended to run parallel to tribal affinities.Phil. notes 53-61 and accompanying text (aqīlū al-kirām ʿatharātihim [illā fī ḥadd min ḥudūd Allāh]). this was one of the many sayings that tended to reflect and reinforce the new status hierarchies. and prestige. see Chapter 1. 7 (quoting Nāṣir al-Dīn al-Ṭūsī’s (d. society’s elite members enjoying access to wealth. 2006). such as slavery. Oxford University.”37 As historian Louise Marlow has pointed out. 174-75. dissertation.36 All of this would have nontrivial effects on criminal law. 35 See Marlow. ibid. 2-4 (arguing that the Qurʾān does not necessarily attempt to abolish social hierarchies in the present world however meaningless it insists they are for the next.34 Some later medieval scholars described separate tiers of society based on status and validated practices of viewing each. also arguing that the Qurʾān can be understood to endorse existing forms of worldly inequality in Arab society. 672/1274) quadripartite model of social hierarchies to be observed in the law). Ibn Qutayba uses it as proof of divine sanction for ethnic inequalities. 60-63 (discussing this trend at work in the context of intermarriages between ʿAlids and members of various Qurashī clans). and                                                                   34 The legal doctrine requiring equality in marriage partners for a valid marriage (most famously picked up by the Ḥanafīs: kafāʾa) included socio-genealogical status. 102    . 36 37 For citations to various versions of the ḥadīth in the major Sunnī and Shīʿī collections. For a treatment of how this statusreinforcing doctrine played out in the social history of the ʿAlīd community.

the aqīlū saying and related aphorisms that emphasize hierarchy make no mention of the social conditions of the local economies or culture—neither the agrarian base in Iraq nor the merchant practices in the Ḥijāz. note 60 and accompanying text.Ṭurṭūshī similarly uses it as divine endorsement for social hierarchies. 39 40 41 Ibid.38 The saying was so widespread and well known that it was considered. the Ḥijāz was initially home to both Umayyad clans and to ʿAlids.. they were sayings easily used by classes of transient elite.41 That area was home to the factions who had the most to gain from claiming elite status on the sides of both the political authorities and the opposition to them based on alternate claims of preference and leadership authority. The sayings then could well have reflected competition for social precedence in the garrison towns in Damascus and Iraq during                                                                   38 Marlow. a matter of “necessary cultural knowledge” for the educated and religious elite.. Ibid. like other common sayings in the first two centuries.39 Marlow has argued that the aqīlū saying emerged after a shift away from the Islamic egalitarian ideals.” which they used to advance an oppositional political claim to leadership. That is. Instead. Hierarchy. 16-17. 17.40 This claim is strengthened by the fact that the saying proliferated in the Ḥijāz. 13-17. each group proffering competing claims of “preference. See Chapter 1. That said. 103    . because it contrasts markedly from the Qurʾānic view of moral preference that seems to reflect the values of the earliest community.

so he avoided it. One of them was recounted in Chapter 1. the jurist stated that “the                                                                   42 For a similar observation and quotations of hierarchical descriptions of Islamic society suited to a transient elite that holds “commoners (῾āmma)” in disdain. Mirʾāt al-jinān. Khushanī. 104    45 . Ḥabīb (d.44 The short version of the story is that Abū Yūsuf used the maxim to avoid punishing the ʿAbbāsid caliph Hārūn al-Rashīd’s son for zinā.42 At least. 6:381-2. In the story. note 34 (citing multiple sources for this story: Tanūkhī. Here was the ḥudūd maxim in action. Abū Yūsuf’s legal advice permitting ḥudūd avoidance garnered him a handsome monetary reward and helped elevate him to a position of prominence as chief qāḍī. Taʾrīkh. 1922). a prominent figure in government who actively encouraged different rules on the basis of elite status.S. that is how those of noble stock in those places used them. used to benefit the elite.43 We have already mentioned the interpretations of the likes of Ibn Qutayba. Akhbār. Hierarchy. 1:281 (reporting this event under the year 181 AH). 1:383 [quoting Ibn Khallikān and reporting this event under the year 182 AH]). Margoliouth trans. 186-91. see Marlow. see D. There are several cases where we find jurists using the ḥudūd maxim to benefit those of high status in a similar vein. 43 44 Ibid. 136-7]. Nishwār al-muḥāḍara.45 When it comes to ḥudūd laws that God has determined and made mandatory. 252-4 [for an English translation. In another episode. The Table Talk of a Mesopotamian Judge (London: Royal Asiatic Society. Ibn al-Wardī.the later Umayyad and early ʿAbbāsid periods. 36-40. the prominent Cordoban jurist and traditionist ʿAbd al-Malik b. using the aqīlū saying. Wafayāt al-aʿyān. Ibn Khallikān. involving Abū Yūsuf and the indiscretions of a young prince. Yāfiʿī. Abū Yūsuf concluded that the evidence—only the caliph’s knowledge of the act—was insufficient to impose the punishment.. 238/853) reportedly invoked the maxim to save his brother Hārūn from an accusation of blasphemy for questionable statements he had made. See Chapter 1.

ranked by later Sunnī creed as most preferred in spiritual rank after the Prophet] . whom he deemed more trustworthy. and sent a letter to the reigning caliph. Appendix (Version 2). When two neighbors approached him to inquire whether he was of sound mind. Akhbār. his brother ʿAbd al-Malik was one of the jurists whom the caliph and judges called upon for advice on particularly difficult questions of law. 105    . except that I have become so sick that even if I murdered Abū Bakr and ʿUmar [the first two caliphs. Two arguments evaluated the merits of the blasphemy charge and one concerned the evidence. as did his Companions (idraʾū ʾl-ḥudūd ʿan al-muslimīn mā wajadtum lahum … [makhrajan]).”46 In this case. 187. which—if proved—carried a penalty of death. he said “I am fine. al-Ḥakam (ʿAbd al-Raḥmān II). See Chapter 1.Prophet commanded avoiding ḥudūd laws in cases of shubha (idraʾū ʾl-ḥudūd ʿan ummatī bi-ʾl-shubahāt). ʿAbd al-Raḥmān b. On the merits. Ibn Ḥabīb made three arguments to highlight the doubts and uncertainties surrounding the case.. 47 Khushanī. The caliph wrote to ask the judge of Cordoba along with Ibn Ḥabīb and his fellow expert jurists to investigate this matter concerning the blasphemy charge. To preserve a sense of the original text. I would not deserve this!”47 The person who heard the first statement along with the two neighbors accused him of blasphemy. in an ultimately successful effort to save his brother Hārūn from the death penalty. Ḥabīb (ʿAbd al-Malik’s brother) had made a statement denigrating the religious Muslims of his time in favor of Christians. he argued that all his brother did in the first statement was to censure the Muslims of his time for what he perceived as                                                                   46 There is an ellipsis in the text. I have removed the honorific “may God be pleased with them. Fortunately for Hārūn. offering written testimony to that effect. Hārūn b. I have filled it with the text of the ḥadīth as recorded in the Sunnī ḥadīth collections.” which appears to be an interpolation that followed later common practices of including a blessing in any mention of the early Companions..

Ibn Ḥabīb admitted. In fact. This second meaning is common to “fools and ignoramuses” who are merely complaining about what God has meted out to them. 106    . Ibn Ḥabīb said. meant something of this kind.48 The second statement was more problematic. That is. there is no legal rule prohibiting people from complaining of hardship. the Qurʾān relates stories of Jacob (who complained at losing Joseph) and Job (who complained of the hardship that he suffered for eighteen years) without any absolute condemnation. in such a state of attention and repentance that he was truly aware of presenting himself to God as a humble and lowly creature.rampant corruption. Yet it was no secret that this esoteric meaning was unlikely. but God certainly never legislated any ḥadd sanction against it. This. the Prophet discouraged it. and thus can warrant some kind of disciplinary punishment (ʿuqūba). People instead popularly used such figures of speech for emphasis to express in exaggerated terms the extent of their life hardships (li-shiddat al-karb). then the statement was praiseworthy. When God censured them for complaining. as when Uways al-Qaranī al-Zāhid told a disciple to stand before God in prayer as if he had just destroyed the heavens and the earth—meaning. his brother’s words could be construed as either praiseworthy or ill-advised. the jurist argued. in mentioning the murder of the illustrious Companion-caliphs. If his brother. should not be a prosecutable offense because the sentiment actually falls in line with the prophetic prediction of increasingly corrupt societies across time (fasād al-zamān). Jacob said that he had committed a sin—not a crime—and asked for                                                                   48 Ibid. It is ill-advised. but it is not a case involving ḥudūd laws. Muslim ascetics have used such figures of speech. Admittedly.

190 (fa-law kānat al-ʿuqūba tajib ʿalā Hārūn wa-wajaba an yusammā lahu man shahida bihā ʿalayh wayubsiṭ lah al-madfaʿa li-dhālik wa-yuwassiʿuh min al-ʿadl mā wasaʿa ʾl-muslimīn). discretionary punishment. Ibn Ḥabīb argued in the alternative that.50 In the account. but it was not a criminal offense such that it warranted the ḥadd sanction for blasphemy.forgiveness. among them was testimony that did not allow the witness to confront his accuser. The brother received a lesser. 191. he is held up as a paragon of patience! Read in this light. Hārūn’s statement was ill-advised. The ḥudūd maxim works to avert punishments of bad acts that God had specifically criminalized when their commission has not been proved beyond doubt. after which his successor. But perhaps he doth protest too                                                                   49 Ibid. any ḥadd punishment should be avoided because the accusation rested on insufficient evidentiary grounds. freed him. his brother had committed no ḥadd crime. the jurist noted. Caliph Muḥammad. how much more so should the tendency to avoid punishment apply when dealing with unspecified crimes that are of doubtful criminality or culpability! With these arguments. presumably. 107    . To the contrary. even if Hārūn’s statements rose to the level of criminal wrongdoing on the merits. Ibn Ḥabīb concluded. and his arguments had nothing to do with the case involving his brother or. Islamic criminal procedure barred certain types of testimony in criminal legislation. Job was never considered an apostate nor punished. 50 See ibid. Before imposing a punishment. the high social rank of their family. featuring the ḥudūd maxim and cleverly highlighting areas of doubt. he was imprisoned until the caliph died.49 At bottom. Ibn Ḥabīb had saved his brother from the ḥadd punishment of death. the court must identify the witnesses who testified against the accused and give him the opportunity to defend himself.. Finally. Ibn Ḥabīb insists that he would make the same arguments for anyone..

eadem. 1987).” 230-31. 63-70 and sources cited therein. During the time of the ʿAbbāsid caliph Mahdī (r.much. In one version of the story. In this case. swearing that he had never uttered any blasphemous statements: “By God. for the Prophet instructed us to ‘avoid ḥudūd sanctions in cases of doubt or                                                                   51 For the full story. 108    . 167/783). see Fierro. I never joined others with God even for a blink of an eye. Upon hearing allegations that the poet had rejected the Prophet in some of his poetry. ʿAbd al-Quddūs (d. that is. Ibn Ḥabīb was one of the jurists in favor of imposing the death penalty on ʿAjab’s nephew with the result that the blasphemy charge stuck and the concubine’s nephew was executed. secretly holding non-Islamic theological beliefs.” 230. because his jurisprudence in other contexts is revealing. Mahdī summoned him on charges of blasphemy. 158-169/ 775-785). La heterodoxia en alAndalus durante el periodo omeya (Madrid: Instituto Hispano-Arabe de Cultura. a Basran litterateur named Ṣāliḥ b. La heterodoxia. he made none of the arguments he advanced for his brother Hārūn. “When Lawful Violence Meets Doubt. To the contrary.51 When he was asked about the blasphemy case of the nephew of the royal concubine ʿAjab—someone of relatively high status but not related to him— he was not so intent on avoiding the punishment. see also eadem. though the maxim was still at play in the legal arguments invoked in the case. Ibn Ḥabīb seems to have generally been in favor of the death penalty.52 In an earlier blasphemy case in Iraq. see Fierro. “When Lawful Violence Meets Doubt. Ṣāliḥ denied having authored the offending verses. was one of the poets accused of masked infidelity (zandaqa). So [also] be mindful of God! Don’t shed my blood on the basis of doubt (shubha). 52 For this story. in his role as consultant (mushāwar) to the judge of Cordoba. 5763 and sources cited therein for a fuller account. though these proceedings arose just after the ones involving Hārūn. the defendant had not been so fortunate as Hārūn turned out to be.

1997). 1967): 116-52 (Dīwān Ṣāliḥ b.v. E.” 238 (“An old man cannot change his ways until he is in the grave and … when the old man abandons his mistakes. Ibn ʿAsākir (d. however. see Fierro. Goldziher. 23:347-55. The caliph was so impressed by the poet’s eloquence and wisdom that he commanded that Ṣāliḥ be set free (amara bi-takhliyat sabīlih). 1893): 104-29. no. 571/1176). ed. Abū ʾl-Faḍl al-Baṣrī [= Ṣāliḥ b. and Ṣāliḥ readily obliged. 463/1071). He recited until he came to the following lines: An old man does not abandon his ways Waʾl-shaykhu lā yatruku akhlāqahū No sooner does he repent than he reverts to his folly Idhā ʾrʿawā ʿāda ilā jahlihī Until his body is buried in the earth ḥattā tawārā fī tharā ramsihī Like a sickly man who falls back to his weakness ka-dhī ʾl-ḍannā ʿāda ilā nuksihī …53 Taken aback. Muṣṭafā ʿAbd al-Qādir ʿAṭāʾ (Beirut: Dār alKutub al-ʿIlmiyya. Taʾrīkh Madīnat Dimashq (Beirut: Dār al-Fikr. Taʾrīkh Baghdad. “When Lawful Violence Meets Doubt. September 1892). “When Lawful Violence Meets Doubt. Ṣāliḥ b. ʿAbd al-Quddūs]). But the point is that the maxim was again recognized and invoked in the highest circles here with Mahdī. ed.”). Ṣāliḥ was executed and crucified above a bridge. no. 1991): 2:15-20). ʿAbd al-Quddūs al-Baṣrī (Baghdad: Dār Manshūrāt al-Baṣrī. 1993). 2819 (s. Delmar Morgan 2 (London: [Printed for the Committee of Congress]. NB: Arʿawā is literally “to abandon. 4844 (s. invocation of the ḥudūd maxim was not enough to spare his life. Jahrhundert Hidschra: eine Geschichte des religiosen Denkens im Fruhen Islam (Berlin: Walter de Gruyter. 109    54 . see Fierro. Wafayāt al-aʿyān. 2:492 (s. “Sâlih b. as it had been under the governing authorities Hārūn (the ʿAbbāsid caliph) and ʿAbd al-Raḥmān II.” For an alternate translation. ʿAbd al-Kuddus und das Zindîkthum während der Regierung des Chalifen al-Mahdî. For discussions in secondary sources. 9:303. Melhem Chokr. Ṣāliḥ’s citation of the                                                                   53 Of the versions recorded with slight variants (see below. I have drawn on the version in a critical edition of Ṣāliḥ’s poetry contained in a monograph on his life and writings. ʿAbd al-Quddūs).” in Transactions of the Ninth International Congress of Orientalists (held in London. Ṣāliḥ b. 222-31. he does not fail to come back to them. Theologie und Gesellschaft im 2.’” He then began reciting the Qurʾān until the caliph had a change of heart. Und 3. Josef van Ess. Mahdī asked him to recite some poetry to him. Abū ʾl-Faḍl alBaṣrī). like a convalescent who falls sick again. 1995). Zandaqa et zindiqs en Islam au second siècle de l’Hégire (Damascus: Institut Français de Damas.” 238 (citing I.v.v. 681/1282). ʿAbd al-Quddūs). the caliph reversed his decision to accept the poet’s claims of innocence and perhaps rehabilitation. note 55). 143. Mahdī gathered from these lines that Ṣāliḥ would never give up on his blasphemous ways and decided to rule on his case harshly. See ʿAbd Allāh alKhaṭīb.ambiguity. Ibn Khallikān (d. See al-Khaṭīb al-Baghdādī (d. Just before the poet left.” but is rendered here as “repent.54 This time.

maxim represented another instance of at least an attempt by a member of the elite to use the maxim to avoid punishment regardless of the merits of the case (or in fact where guilt was presupposed. 2005). Alternatively these jurists could have been using the maxim for its intended use. the following: (1) Andalusian Judge Ibn Abī ʿĪsā (d. Nawādir al-khulafāʾ al-musammā iʿlām al-nās bi-mā waqaʿa liʾl. Diyāb al-Itlīdī. al-Marqaba al-ʿulyā. Kitāb aʿmāl al-aʿlām. That the maxim was abused is a plausible interpretation with which Maribel Fierro regards these cases. E. Fl. night 298. citing but potentially abusing the ḥudūd maxim. even in criminal law. 73-74) [On the Zīrids. 89–91/222–25). ed. ʿAbd Allāh b. ed. 57-61 (as related by Aṣmaʿī (= Abū Saʿīd ʿAbd al-Mālik al-Aṣmaʿī (d.Barāmika maʿa Banī ʾl-ʿAbbās. 2003)]. 1998). García Gómez. But even that could be characterized as abuse if indeed they were selective in their application of it to benefit their elite peers as opposed to applying the maxim broadly without status-discrimination and even to low-status members of society. as it had been with the caliph Hārūn’s son and Hārūn.” 1-2. though use with caution. 229-30 (describing. see Andrew Handler. Nawādir al-khulafāʾ (Cairo. 1974).56 They underscore the extent to which social stratification was a fact of life in early Islamic societies and show that officials—including some jurists—reportedly used maxims like the aqīlū saying and ḥudūd maxim to shape and exploit the law to justify preferential treatment. and E. To be sure.” AlAndalus 36 (1971): 71-79. 110    56 . brother of Ibn Ḥabīb).]. ʿAbd Allāh al-Nubāhī]. al-Khaṭīb. 1934). in addition to these three cases. Aʿmāl al-aʿlām fīman būyiʿa qabla ʾl-iḥtilām min mulūk al-Islām wa-mā yataʿallaq bi-dhālika min al-kalām. “Sobre la diferencia en el castigo de plebeyos y nobles. (2) Zīrid vizier Simāja avoiding the ḥadd punishment in a similar scenario (citing Ibn al-Khaṭīb. 268-69 [see Muḥammad b. the anecdotal literary and biographical sources in which these stories appear no doubt record the most spectacular of such encounters. and trans. 1876) [see Muḥammad b. 216/831))]). ed. Itlīdī. 339/950) avoiding the ḥadd punishment for drinking according to a Ḥanafī rule disallowing punishment for a single confession (citing Bunnahī [sic = ʿAlī b. Arsenio Cuellas Marqués (Granada: Universidad de Granada. Lévi Provençal (Rabat. (3) Umayyad governor of Basra Khālid alQasrī (d. Kasraw Ḥasan (Beirut: Dār al-Kutub al-ʿIlmiyya. memorable for socio-political reasons or for the cunning on display. 126/743) urging a high-status thief to avoid punishment through denying criminal wrongdoing which would provide the requisite doubt necessary to trigger the ḥudūd maxim) (citing Alf Layl wa-layla. and. Ayman ʿAbd al-Jābir al-Buḥayrī (Cairo: Dār al-Āfāq al-ʿArabiyya. ed. The Zīrids of Granada (Coral Gables.: University of Miami Press.55 * * * These stories depict jurists as members of elite classes in the second and third centuries. by definition and                                                                   55 Maribel Fierro recounts additional stories in “When Lawful Violence Meets Doubt.

they only form precedent gradually over time as they are repeated and absorbed into the normative texts and treatises of the jurists. only directives based on Islam’s foundational legal sources are binding. Avoidance and Dealing with Doubt With this background. It stands in sharp contrast to the theory of criminal law offered in the works of ḥadīth and law from the same period. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (New York. The bulk of the jurists outlined a different criminal law jurisprudence that actively opposed such orientations toward preferential treatment and arbitrary justice that they observed in the political context. Baber Johansen. “Legal Literature and the Problem of Change: The Case of Land Rent. 1996). 1999).” in Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden et al. Yet this sampling provides a window onto notions of relatively early features of Islamic law and society surrounding the elite’s encounters with or regard for criminal law and social status in the 1st/7th and 2nd/8th centuries.” III. I aim to gain a fuller sense of where the ḥudūd maxim fits in the larger landscape of early Islamic law and society. Rebellion and Violence. Leiden: Brill. I mean to suggest a fitting social and political context for understanding the competing tendencies in ḥudūd style of Islamic historiography. Cf. Their rejection of hierarchy and arbitrariness in favor of Islam’s earliest egalitarian and other moral imperatives pushed them to develop a more measured criminal law that came to be characterized by what I call its “jurisprudence of doubt. 446-64. The stories above come from historical sources that describe political events and some legal cases but are non-precedential. somewhat like common law.: Brill. Abou El Fadl.57 Turning to the precedential reports (ḥadīths) in the normative juristic sources. they do not attempt to provide a representative or comprehensive sample of the course of events. By reviewing                                                                   57 In Islamic legal theory. Competing Cases: Imposition vs. 111    . see generally Sherman Jackson. by it. and even when they feature in legal cases and advisory opinions. For discussions. a look at the early cases reveals competing imperatives alternately for ḥudūd imposition and avoidance.

even when the guilt of criminal wrongdoing was not necessarily at issue. 1:573: “[Premodern judges often dreaded] the responsibility—which to many men would appear intolerably heavy and painful—of deciding … upon the guilt or innocence of a prisoner. English and European judges of that period often avoided entering verdicts altogether.g. opposition to the use of social position for unequal and arbitrary application of the law. were regular features of medieval religious communities. inter alia. for example. Ibid. particularly in areas of criminal law. 10. the physical well-being of a judge was sometimes threatened in the past. English jurors faced similar legal threats until 1670. In addition to the legal and physical consequences that sometimes obtained from demonstrably false verdicts.”) (citing.them.” e. A History of the Criminal Law of England (repr. “Vom Wort. legal procedures in the premodern world “were often designed to help relieve the judge’s own anxieties about the act of judging.”58 Charged with deciding issues of guilt or innocence. I aim to show that they express some of the core concerns of the early community arising from background social and political developments—namely. just as it is still occasionally threatened today. 1883).60 premodern                                                                   58 Whitman. As the comparative legal historian James Whitman has argued. (quoting historian James Fitzjames Stephen. … In medieval Italy. On a grosser level..59 Whitman demonstrates that the modern American reasonable doubt doctrine has roots in premodern Christian theology: the original concern was to protect the soul of the judges and jurors as a mechanism for avoiding blood punishments and death verdicts. (“[M]edieval Islamic jurists. and what we may call the resulting moral anxieties of the jurists charged with defining or interpreting criminal law. 1996) (orig. through clan vengeance or retaliation against judges. see ibid. London: Routledge. Such anxieties about judging.”). attention to religious imperatives to adhere to divine commands. London: Macmillan.zum Indizienbeweis: Die Anerkennung 112    60 59 . Reasonable Doubt. held that judges who falsely convicted an accused person should suffer exactly the same punishment they had inflicted. Baber Johansen. For a comparative description of legal and physical consequences in several pre-modern legal traditions. … judges were subject to civil and criminal liability for incorrect judgments.

” Ius Commune 28 (2001): 11-12). anyone in the premodern world involved in the killing of another person subjected himself to the risk of bad luck. 11 (quoting Adam Smith in Adam Smith’s Moral and Political Philosophy. Abū Ḥanīfa: Ḥayātuh waʿaṣruh. art. Many who were nominated stubbornly preferred to remain separate from the political apparatus.”62 As such. Herbert W.. bad fate. Abū Ḥanīfa was said to have endured torture for his refusals. the major thrust of premodern sensibilities in the Christian world that led to doctrines of reasonable doubt and heightened standards of proof ranged from the need for factual proof to a concern with moral responsibility.64 and                                                                                                                                                                                                 des richterlichen Folter in islamischen Rechtsdoctrinen des 13. The idea was that God Himself was “the great avenger of justice. Famously. Schneider (New York: Harper and Row. particularly when dealing with capital punishment.63 The overarching impetus though was a moral anxiety inspired by a fear of the very personal spiritual consequences of judging unjustly. I argue. “Abū Ḥanīfa. esp. 198-99 ). see Muḥammad Abū Zahra. jurists who worked with the political authorities and took part in their schemes were a minority. [1965?]). or some kind of vengeful divine retribution. 2nd ed.. Though there was certainly overlap between juristic and political arenas. led Muslim jurists to react against social hierarchy and against disregarding the moral imperatives represented by ḥudūd laws. according to “anthropologists and historians of religion …. Jahrhunderts.”61 As a general proposition. ārāʾuh wa-fiqhuh. 2009) (presenting the theory of Schacht and van Ess that Abū Ḥanīfa was tortured for refusing the judgeship a second time because of remarks made 113    . 192-93. ed. Similar anxieties. und 14. ([Beirut]: Dār al-Fikr al-ʿArabī. 1970). Ibid. See also Hiroyuki Yanagihashi. 47. Ibid. bad karma.” EI3 (Leiden: Brill Online. 62 63 64 For a discussion of this and his extreme antipathy toward the ruling authorities and censure of judges like his rival Ibn Abī Laylā who “colluded” with them. 165. 37-48. 61 Ibid. and the sources are replete with instances of their recoil at being nominated to judge.jurists feared the spiritual consequences of unjust verdicts.

fiqh work after the 3rd/9th century. In other words. as discussed in the next three chapters.66                                                                                                                                                                                                 against the ʿAbbāsid caliph Manṣūr during the ʿAlīd revolt in 145/762 headed by Nafs al-Zakiyya and his brother Ibrāhīm) (see Joseph Schacht. These concerns resulted in a certain insistence on ḥudūd imposition in many instances. The aim here is to illustrate the tendency of anxiety-ridden ḥudūd enforcement by providing a few “landmark” cases from the first three centuries.65 This animus against judging has been seen as an unwillingness on the part of many jurists to collude with a corrupt government apparatus. is based on an analysis of the usage of jurists in fiqh works from this period (e. beginning with the “[section] mentioning [ḥadīth and other] reports announcing the gravity of assuming a judicial post over people and that whoever assumes [such a post] has been slaughtered without a knife: dhikr mā jāʾa fī ʾl-tashdīd fī-man waliya ʾl-qaḍāʾ bayn al-nās wa-anna man waliyah fa-qad dhubiḥa bi-ghayr sikkīn”). Additionally. a comparison of the selected cases here with the full range of cases and rulings contained in 2nd/8th and 3rd/9th ḥadīth collections.g. in that they are discussed often by subsequent jurists as central bases for their criminal opinions. 114    . art. as revealed through myriad cases circulating amongst the jurists during these first three centuries. further exhortations to mercy. forgiveness. 65 See Wakīʿ. treatises by Shāfiʿī. Abū Yūsuf. 19-61 (the first chapter preceding biographical reports on judges. inasmuch as they took themselves to be more able exponents of God’s law. it was part and parcel of their moral anxieties surrounding judging in accordance with God’s law. fatāwā. and when ḥadd sanctions are due. Mālik.the main source for the early history of judges opens with prophetic cautions against judging.. and qawāʿid works from the 5th/11th through 9th/14th Mamlūk and Andalusian periods. the selection of cases. while the ḥadīth works cover more subject areas (e.” EI2. “Abū Ḥanīfa. evidentiary standards. the definitions of crimes. and Shaybānī).g. shows that these cases offer a useful cross-sampling of the full range as it relates to the major issues involved in the jurisprudence surrounding criminal law. repentance—some as discussed in the next chapter) this sampling is generally representative of the types (if not frequency) of the issues that arise in ḥadīth works as it relates to interpretive moves and maxims in ḥudūd jurisprudence. how to implement the ḥadd sanction. Akhbār al-quḍāt. attributed to the Prophet and other early authorities as judges in criminal cases. particularly contained in Sunnī ḥadīth literature. Their rulings were also a protection against encroachments of the political authorities on their own jurisdiction. and ḥudūd avoidance in others.. and fiqh. 66 This is admittedly a subjective determination. 1:123). including many reports dating from the 1st/7th century (as per Motzki). however.

Islamic History: A Framework for Inquiry. as with all historiography.67 This is not to suggest that these texts are entirely fictional.68                                                                   67 I take my cue from Roy Mottahedeh. esp. Narratives of Islamic Origins: The Beginnings of Islamic Historical Writing (Princeton: Darwin Press. 1-31 (Introduction: surveying approaches to Islamic history 115    . We can also take them to represent the arguments that resonated in juristic circles as normative. 2 (2002): 132-67. likewise. Donner. Although the cases presented here purport to detail events from the Prophet’s time and immediately after. 1991. authenticity. and Rudolph Peters. “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma Procedure in Islamic Law. at the earliest. a certain type of oath of fealty to the leader (bayʿa) was essential for political loyalty and the (juristic or social) sanctions for breaking it were the “only device for ensuring loyalty when all other sanctions belonged to the established government. This approach is not directly concerned with questions of origins.. (Princeton: Princeton University Press. but it is meant to complement investigations of the sources—as in Chapter 1—that seek to closely evaluate and comment on the provenance and circulation of certain reports or intellectual schools extracted from the earliest available written sources that point to or verify yet earlier trends.The usual disclaimer applies when dealing with sources that are not contemporaneous with the events that they describe.” In a similar vein. Chapter 3 (describing the character of early Islamic historiography and surveying major approaches to the field in contemporary scholarship). the anecdotes about political leaders and notables taking personal oaths of obligation suggest not that they aimed to bind their followers but that they could secure the compliance of their followers through existing loyalties. Hierarchy. Die Anfänge/Origins. e. legal. Stephen Humphreys. numerous other social and intellectual historians have looked to the traditions to make observations about social conventions and normative arguments that carried weight in pre-modern societies that preserved them.g. reports of them are available in written literature only from the late Umayyad and early ʿAbbāsid periods. see. esp. but rather that. Rather than taking them as verbatim representations of what actually happened then. See Mottahedeh.” Islamic Law and Society (Evidence in Islamic Law) 9. 61 and passim. or historical accuracy. 1st ed. cf. also Marlow. we can understand them to indicate the ideas that the later generations of scholars came to associate with Islam’s earliest period. 13 (adopting a similar approach in the context of maxims). they are interpretations that partly reveal the historical circumstances and values of the community recounting them. but that they clearly signified a premium on not violating oaths as they attributed negative consequences for social cohesion and political loyalties when they were. ed. Loyalty and Leadership. rev. and they do not purport to be transcripts of actual criminal proceedings. 1983). 68 For discussions of Islamic historiographical literature. The point there was not whether the anecdotes told involving oath-taking were historical. Fred M. Excellent examples of this latter approach include Harald Motzki. To take just one example. who noticed the high regard that one medieval Near Eastern society accorded to oaths through observing their portrayal in anecdotal. 53. and historical-political literature. 1998).

69 Kim Lane Scheppele. Tayeb El-Hibri. … [Legal opinions] embody the aspirations of legal institutions. Chase Robinson. which is why they are of such central concern here. 1999) (arguing that early Arab history-writing should be viewed not as a register of facts but of moralizing). They express the essence of accepted Islamic legal opinions that have settled as normative for legal pedagogy and practice. though their records could coincide with fact). Marlow. legal maxims do this work of providing the ideal point of view in Islamic law. Legal Secrets: Equality and Efficiency in the Common Law (Chicago: University of Chicago Press. 316-17. 13. just as looking at how men and women dress and act when they are trying to look their best tells us something important about ideals of beauty. As do general maxims of the early Islamic period. Hierarchy. interested as we are in the juristic ideals of that time. … If the question one is asking is what ideals the law embodies.”70 Some reflect the sentiments of egalitarianism and judicial subservience and appear in terms of a call to strictly impose ḥudūd laws. 1988). Others                                                                                                                                                                                                 and historiography in contemporary scholarship and critiquing the radically skeptical approach in favor of one that looks to the Islamic sources as presenting a “kernel” of historical truth). then one should look at those settings most likely to provide the ideal point of view.69 Even more than do legal opinions in the common law context in which that scholar spoke. 116    70 . the cases recorded in the juristic literature of that period “reveal … that a number of different social ideals were in competition in the early second century. Islamic Historiography (Cambridge: Cambridge University Press. As one scholar aptly put it. 2003) (that patronized history-writing aimed at presenting facts in support of legitimating the sponsoring regime or to give answers that belief required. and that the exponents of each were eager to claim the authority of the past. showing us what judges do when they want to get things right for a special occasion. so looking at legal doctrine when judges pretty it up for public display tells us something important about ideals of justice. with the notion that Muslim and Christian historians of the time usually aimed to teach and inspire by illumination and exemplification.This exercise is useful for our purposes of identifying the societal values and moral anxieties at play in early Islamic legal history. Reinterpreting Islamic Historiography: Hārūn al-Rashīd and the Narrative of the ʿAbbāsid Caliphate (Cambridge: Cambridge University Press.

leading members were preoccupied with the                                                                   71 See above. These cases. In what follows. Religious Egalitarianism: The Case of the Makhzūmī Thief The most important episode illustrating the jurists’ fixation on Islam’s egalitarian ideals is the Case of the Makhzūmī Thief. And still others reveal what came to be a compromise revealing attempts to strike a balance between the two tendencies in light of the police power of the state and the moral anxieties of the jurists. during the Prophet’s lifetime. A.reflect a deeper moral anxiety about imposing the harshest of sanctions—the death penalty. I will argue. used to borrow goods and then deny that she had done so. and this materializes in measures of ḥudūd avoidance altogether. This woman belonged to the prominent Makhzūm clan within the Prophet’s tribe of Quraysh. 117    . demarcate an area of public morality over which political jurisdiction and ḥudūd enforcement may be warranted and shelter an area of private action where concealment and avoidance are key. note 66. I present these competing tendencies in criminal law jurisprudence by focusing on cases that are of recurring importance in the later legal literature. Accordingly. Ḥudūd Imposition: Egalitarianism and Judicial Subservience 1. for which she was eligible for the ḥadd punishment of handamputation. It is through these cases that jurists negotiate competing values. This amounted to theft. The reports depict a woman who. I argue that they should be read against the backdrop of an increasingly stratified social context (in terms of socio-political status) that challenged the ideals of the earliest community to which the scholarly community recounting these cases aimed to hearken back.71 throughout.

Bayhaqī. 247. to go speak to the Prophet on the woman’s behalf in an attempt to avert the requisite sanction. 4373 (that she had stolen in the narration by al-Layth b. Abū ʿAbd Allāh al-Zubayrī. Jamharat nasab Quraysh. Zayd. Social History of the ʿAlīd Family. Her mention brought into play the deep religious and cultural valence that Fāṭima enjoyed rather uniquely in Muslim societies across time and space. art. Muslim. But the Prophet responds quite unfavorably: “Usāma. The allusion to Fāṭima is significant for reasons beyond the obvious familial connection and caution against nepotism on that basis. see Zubayr b. Usāma b. 124. He then stood and addressed the people publically. E. no. Bakkār. are you interfering on a matter involving one of the ḥudūd laws of God?!” and orders the sentence to be carried out. I swear by God that if [my own daughter] Fāṭima bt. 284. they would let him go. 73 Abū Dāwūd . 6:137. no. the Prophet prohibits in no uncertain terms disparities in ḥudūd enforcement based on social status or familial relations. Fāṭima had long been recognized as the single most-revered                                                                   72 On the stature of the Makhzūmī clan within the Qurashī tribe. Banū. At the time the ḥadīth scholars and jurists recorded this case in the eighth and ninth centuries and after. Nasāʾī. 60-63 (noting intermarriages between ʿAlids and Makhzūmīs as indicants of marital suitability for those of the same social-genealogical status.004 (citing Bukhārī and Muslim. Saʿd). 4:133. Bernheimer. 4374 (that she used to borrow goods without returning them in the narration by Maʿmar. Sunan. I would cut off her hand. “Makhzūm. Ṣaḥīḥ. See also Martin Hinds. or that she stole a qaṭīfa from the Prophet’s house in the narration by Masʿūd b.73 In so saying. they would impose the ḥadd punishment on him. when a person of high class (or a noble. no. ed. ed. Lévy-Provençal (Cairo: Dār al-Maʿārif liʾl-Ṭibāʿa waʾl-Nashr. 1953). Usāma had the greatest chance of success given his relationship to the Prophet: he was the son of the Prophet’s own adopted son. 118    . Sunan. those who came before you were destroyed because [it was their practice that]. Muḥammad stole. kafāʾa). Jamharat ansāb al-ʿArab (1962). 6887 (in bāb iqāmat al-ḥudūd ʿalā ʾl-sharīf waʾl-waḍīʿ. as necessitated by the principle of equality in marriage. but when a commoner (ḍaʿīf) stole. and noting that they recorded the version of al-Layth b.matter. 4:330. Maḥmūd Muḥammad Shākir (Cairo: Maktabat Dār al-ʿUrūba. no. no. Ṣaḥīḥ. Saʿd). al-Aswad). In their estimation. Sunan. Nasab Quraysh. in rebuke and admonition: Surely. see also Bukhārī.” EI2. sharīf) stole. 17. 1688.72 They designated one Makhzūmī clansman. 1381/[1962]).

2. See Bernheimer. Princeton University.74 Imagining even Fāṭima as ḥaddeligible then was the most emphatic declaration possible to signal that ḥudūd laws were to be enforced in an egalitarian manner. who stayed in Mecca after most Muslims had migrated to Medina years after the Prophet began preaching the message of Islam. He awoke only to discover that a man had come and stolen his cloak. she was the progenitor of the ʿAlīd line of descent. Social History of the ʿAlīd Family. The emigrants made known their attitude that those who remained in Mecca were wrong to do so. in                                                                   74 See Denise L. and piety). 1997) (describing universal regard for and veneration of Fāṭima as a model of the perfect woman in terms of societal roles. regardless of social status. Umayya. Judicial Subservience: Ṣafwān’s Case and The Case of the Drunken Orphan Other cases. both of which were fiercely maintained in the early period and throughout ʿAbbāsid rule). A famous incident involves the early convert Ṣafwān b.” more elite even than those distinguished as relatives of the Prophet otherwise (sharīfs). speak to jurists’ more general concern with the Qurʾānic imperative to obey the divine law.woman in Islamic history amongst Sunnīs and Shīʿa alike. which has been called the “peerless aristocracy of Islam. On his way. for reasons centered on but also going beyond her familial tie to the Prophet. Soufi. the jurists reporting these cases were signaling their strong opposition to the growing influence of status hierarchies in applications of the law. he stopped to rest in a mosque. The Image of Fatima in Classical Muslim Thought (unpublished PhD Dissertation. dragged him to the Prophet for criminal prosecution. where issues of status are not immediately apparent. In the context of Umayyad and ʿAbbāsid excesses. 119    . Moreover. and the continuing negative sentiment is said to have eventually prompted Ṣafwān to join them some two hundred miles to the north. having captured him. Ṣafwān pursued the thief immediately and. intellectual competence. napping with his head on his cloak. 161-65 (noting that boundaries were maintained early on through marriage as recorded in genealogies. The Prophet ruled that the man was to have his hand cut off.

Muslims regarded Ṣafwān with some degree of suspicion. 7371 (similar to ʿAbd al-Razzāq’s version). see. another has it that he left it atop his waiting camel outside. because the thief would not have taken the cloak from a secure location. There are many versions of this story. 10:229. see also Nasāʾī. ʿAbd al-Razzāq (d.938. the later legal sources tended to pick up the version listed above in the text. Apparently. Perhaps for this reason. For the latter. and it was the Prophet’s duty—as the political and judicial authority charged with implementing the divine law—to impose the punishment in deference to divine legislative sovereignty. This variant says the cloak was stolen from under his head. 18. Muṣannaf. For a collection of versions. he was                                                                   75 Shāfiʿī.75 Jurists typically cite this case for the proposition that the matter had already been adjudicated. Tajrīd.accord with the Qurʾānic ḥadd punishment for theft. Umm (1961). cf. If even the Prophet could not avoid applying sanctions once the process revealed that an offender had clearly violated the law. See. By placing Ṣafwān at the center. no.002-03. the anecdote reflects a juristic ideal of lenience. 10:229. “if only you had done so before you came to me!” In one version of the story. If Ṣafwān’s actions are taken at face value. Sunan. 131 (hallā qabla an taʾtīnī bih). which is a key condition for the application of the ḥadd punishment as against a more lenient discretionary punishment. 17. each with slight variations.. But this version is problematic as a model case. no one could. “I hereby gift him the cloak. Muṣannaf. no. would you [still] cut off [this man’s] hand for my cloak that I now gift to him?”). 76 A minority—who take this case as a precedent for ḥudūd avoidance—deny that the Prophet imposed the ḥadd.76 Here is an instance of jurists showing that political and judicial authorities alike are accountable and subordinate to the dictates of the divine law. 18938 (“O Messenger of God. no. 4:4330. 211/826). 11:5986-87. Ṣafwān balked: “I never intended this [outcome]!” he exclaimed. 8:287. the Prophet ordered that the ḥadd punishment be imposed.g. e.” The Prophet responded. Qudūrī. At this. nos. rejecting Ṣafwān’s belated attempt to avert it. the jurists were depicting the elite and wealthy member of the leading Umayyad clan as trying once again to subvert the law through intervening in a criminal proceeding as if his word could take precedence over the law. Sunan. see Bayhaqī. Legal process was key. ʿAbd al-Razzāq. 120    .

Boston: Brill. 43 (grouping Ṣafwān b. A case more directly emphasizing the moral imperative to obey the law is reported to have occurred some years later in the Case of the Drunken Orphan. This would have occurred during the reign of ʿUmar or the first part of ʿUthmān’s reign. see Boaz Shoshan. only after which he returned. On the negative portrayal of Ṣafwān in the historical literature suggesting doubts about his level of commitment to the Muslim community. see Wakīʿ.one of the Prophet’s greatest opponents before his conversion. Meccan Trade and the Rise of Islam (Princeton: Princeton University Press. he appears to have been the first judge with any lasting effect.77 Yet these dubious distinctions make it reasonable to take this report at face value for the egalitarian ideal that the jurists wanted to promote. and eventually converted). For reports of these decisions. the episode may have meant to portray his ignorance or genuine—but belated—degree of compassion. The nephew protested on the grounds that the uncle was derelict in his duties as a guardian: “You neither disciplined me [to thereby teach me right from wrong] nor                                                                   77 Ṣafwān was a prominent merchant before Islām. regardless. There is some dispute about when Ibn Masʿūd assumed the judgeship in Kufa or even who was the first. who is said on some accounts to have opposed the Muslims at Badr and then tried to escape to Syria with a caravan containing a considerable amount of silver that he owned. 60 (arguing that Ṭabarī makes Ṣafwān appear to be a fool by depicting him to have incorrectly predicted the Prophet’s demise after the battle of Badr). 354-55. reconciled. Umayya amongst the “die-hard leaders” of Mecca who resisted the Prophet’s overtures to reconciliation until the Prophet’s eventual conquest of Mecca. See Patricia Crone. This incident concerned a man who brought his nephew to the famous Companion of the Prophet. Age of the Caliphates. 2004). see also Kennedy. before the complaints of his nepotism had begun. 1987). Akhbār. His was a moral anxiety that appeared more typically in the persons of the Prophet or ʿAlī when it involved death. He was a prominent Companion and the only one from whom the sources preserve ḥadīth narrations and judicial decisions. 121    78 . precisely because of his otherwise dubious regard in the sources. 87. 32/652-3). and the sources depict him as belatedly joining the community in Medina. The Poetics of Islamic Historiography (Leiden.78 The uncle asked Ibn Masʿūd to punish the young man for drunkenness. which were often relied upon by his successors. while he was presiding as Kūfa’s first governorjudge. Ibn Masʿūd (d. Even Ṣafwān was shocked and regretted his pursuit of justice immediately when he learned of the harsh consequences.

” he complained. which applied across-the-board. It could be that he doubted whether ʿAmr ever imposed the punishment as no one witnessed it and could testify to it. Here. he was alluding to a general sentiment against revealing indiscretions publicly. Sunan. he did so nonetheless because the guilt was not contested. we can assume that those recording Ibn Masʿūd’s decision meant to emphasize the more general tendency. no. to sentence the young man. but whenever an authority (walī al-amr) is brought a ḥadd violation. imposed the ḥadd punishment. ʿAmr b. Ibn Masʿūd referred to instances when the Prophet had applied ḥudūd punishments against anyone who violated the law. Ibn Masʿūd is said to have reluctantly. al-Jābir—Shuʿba—Muḥammad b. Mustadrak. Here. Ḥanbal]—ʿAbd Allāh b. he imposed it again publicly in Medina. as the ḥadīth source reporting this case does not mention the aqīlū saying and as it leaves the identities—and thus social status—of the parties unknown. and when ʿUmar heard about it. 80 Bayhaqī. This is similar to a story related about ʿAbd al-Raḥmān. True.covered my sin. even though it pained him deeply. the governor-judge. 17. 4:24 (Abū Mājida—Yaḥyā b.”79 Drawing on this precedent. 80                                                                   79 Al-Ḥākim al-Naysābūrī. When he faced the very first case of theft. “God is (quick to) pardon and loves pardon. as elaborated below. 14:287 (citing the tradition in the course of his commentary on Qurʾān.391. he said. alternatively. Ibn Masʿūd said. al-ʿĀṣ imposed the ḥadd secretly. over and above the concealment and special preferences that the aqīlū saying advised for the elite. 122    . There. Aḥmad b. son of ʿUmar. It pained him too. See Ibn Taymiyya. Ḥanbal …). Jaʿfar— His father [Aḥmad b. he may have insisted on public punishment for the same reason cited above— that mere compassion could not warrant any departure from proper ḥudūd enforcement. but decidedly. whom his brother dragged to court in Egypt for drunkenness. he must impose the designated punishment. the Prophet grimly accepted that his personal qualms about the severity of the sanction “could not stop [him] from [imposing it]. 8:331.” Ibn Masʿūd quoted. 24:2 (wa-lā taʾkhudhkum bi-himā raʾfa)). In his deliberations. Majmūʿ al-fatāwā.

the report emphasizes the duty to obey the law by imposing ḥudūd punishments once the crime is established. personal qualms against severity. ḥudūd imposition is mandatory. I ransomed my son with a hundred sheep and a slave-girl of mine. Miʿyār. not contesting the guilt. Thus. ruling that the husband was to return the sheep and servant and the son was to be flogged 100 lashes and exiled for a year. It also fits with the idea that where the facts are established and guilt is not at issue. First. they informed me that my son was to receive a hundred lashes and be exiled for a year and that this man’s wife should be stoned. which the sources portray as either being slow to receive details of the laws or highlighting a notion that those laws had not yet been set.82 3. 62-63.81 Despite the attempts to avoid them. any change of legal facts tended to suffice for ḥudūd avoidance—at the trial stage. after sentencing. The point of this story is to provide evidence that stoning was a bona fide Islamic rule.As with the other cases. al-Ṣughayyir. In fact. the Mālikī jurist Wansharīsī reports a case from 8th/14th century Andalusia where the judge. In one case.” The Prophet reluctantly responded that the latter opinion was correct. no doubt. or if it was. Law. see David S. 1300-1500 (Cambridge. 123    . after the early period. the decisions provided support for the notion that socio-political status could not absolve                                                                   81 That is not to say that such attempts would necessarily or indeed always did fail. no. “He then instructed Unays to go to the accused wife. as when someone confesses to adultery then subsequently denies it. at a time where it was not settled that stoning was the appropriate punishment for adultery. Moral Anxiety: Jurists as Opposition to Status-Reinforcing Undercriminalization The jurists’ interest in recounting these cases was two-fold. Society. Ṣaḥīḥ. Wansharīsī. but the punishment itself was. No intervention. the guilt was not contested. Usāma’s attempt to intervene on behalf of his fellow clanswoman failed. 2002). For instance. ḥudūd punishments were applied in all cases. Ṣafwān was unable to counter the Prophet’s religiously based moral authority with his own belated attempt to change the legal facts by “gifting” his stolen cloak to the thief after sentencing. The father explained his son’s case. For a discussion. maintained that post hoc changes to legal facts sufficed to create ḥadd-averting uncertainty. 6440.” Bukhārī. 4:494. and the orphan’s attempts to avoid punishment in the face of admitted guilt were ineffective. an early convert from Yemen came to the Prophet asking him to judge between him and a man who accused his son of committing zinā with his (the accuser’s) wife. those in Yemen did not know of it. but the sentence: “My son is this man’s servant (ʿasīf) and committed zinā with his wife. which receives considerable attention in later juristic literature. But when I then asked the more knowledgeable people [about the matter]. to stone her. 82 There is another series of cases reported from Yemen. Powers. and Culture in the Maghrib. or baseless pleas for lenience were to be entertained. In that case. New York: Cambridge University Press. and even in the midst of carrying out the sentence. and if she confessed.

If jurists were casting about for an argument that their hands were constrained by the dictates of the law. cf. These cases showed that the Prophet himself and recognized leaders of the community were concerned with obedience to the law.criminal culpability. they could argue from these precedents.83 Significantly. political and judicial authority alike were legitimate only so long as both followed God’s law with attention to the egalitarian and other moral imperatives that the Prophet had enunciated. By keeping the memories of the egalitarian and moral ideals alive with such stories in criminal law. Claims that they were barred from considering external matters would have been helpful in alleviating the enormous pressure from high-status offenders and interceding members of the socio-political elite. 2001). the examples would have also served to temper caliphal assertions of absolute control over criminal law by protecting the juristic sphere of authority on moral-religious grounds. The Economy of 124    . jurists could present themselves as the agents best-equipped morally and intellectually to define Islamic law and its accompanying moral imperatives. The jurist’s duty. Continuity. This they could use against the Umayyads who typically skirted the law or attempted to intervene in judicial affairs on that basis. and—counter-intuitively—thereby expanded their jurisdiction over penal law. was to impose the law according to the facts of the case. and Change in Islamic Law (Cambridge: Cambridge University Press. see Wael Hallaq. Aron Zysow. as we saw above. Authority. these cases provided it. who tried to persuade judges time and again to avoid punishments based on non-legal considerations. On that basis. the jurists’ arguments                                                                   83 On the epistemological basis for juristic authority in Islamic law. they could successfully insist that the political authorities had religious legitimacy only so long as they supported the jurists in recognition of that moral-“epistemic” authority to define the law. Second.

125    . and on the other as a means of expressing subservience to an authority that trumped even political leadership: the divine Law to which jurists had epistemological access. Conscientious Muslims went to the legally minded among the forerunners of the ulema and got opinions…. Certainty and probability were the fundamental categories with which they approached every question of law. the specialists in religious learning so prominent in the later Islamic Middle East.resonated with the political and spiritual sensibilities of enough factions that they were ultimately successful in their claim to authority. It is a restatement of the settled scholarly view of early Islamic political and legal theory that proto-jurists formed in “pious opposition” to political excesses of the Umayyads and their successors. 1 (“From a very early period … Muslims came to treat the question of legitimacy along explicitly epistemological lines. … The distance between the “pious opposition” and government also accounts for the development of the independent fatwā or opinion …. Although later dynasties often appointed muftis. As one scholar recently put it. Jurists drew on early precedents requiring strict enforcement of ḥudūd sanctions on an egalitarian basis on the one hand. See Roy P. The independence of the mufti was a significant part of the formation and persistence of a semi-independent community of jurists. 2003). it also created a number of circles in which a more intense discussion of religious matters took place. Lessons in Islamic Jurisprudence (Oxford: Oneworld. Harvard University. and their members were the forerunners of the ulema. 85 84 Ibid. many muftis sought to remain and succeeded in remaining largely independent because people were free to choose their authorities and because a mufti who kept his distance from the government gained prestige among ordinary Muslims. It bears repeating that the point is not whether the events                                                                                                                                                                                                 Certainty: An Introduction to the Typology of Islamic Legal Theory (unpublished PhD dissertation. 1984). The pious opposition to the Umayyads not only shrank the caliph’s authority to promulgate legal rulings.. This led to an uneasy balance with the government over law as well as more intense discussions in legal-religious circles about what the law was.”). 6-8.84 This portrayal of juristic authority in epistemic-moral terms against the state is nothing new. This concern with epistemology sets Islamic law apart from other legal systems that treat the problem of legitimacy in institutional terms.85 These views are employed here to describe just how the jurists as oppositional agents to the state functioned in the criminal law context. Mottahedeh. 7-8.

B.”).060 (“Avoid ḥudūd [punishments]. and in the process. but that the jurists invoked these cases as precedent in their moral oppositional project.). The more the politics of power drove political authorities to disregard Islam’s early moral imperatives. Sunan.                                                                   86 Bayhaqī.actually took place. 8:414. see Ibn Abī Shayba. Notably. while they reportedly acknowledged some instances where ḥudūd liability may be removed. For a similar ḥadīth attributed to ʿUmar from an earlier period. 9:359. they determined that “it is improper for the Imām to neglect them [altogether]. no. though it is improper for the Imām to suspend them [completely]: Idraʾū ʾl-ḥudūd wa-lā yanbaghī liʾl-imām an yuʿaṭṭil al-ḥudūd. Death is Different: The Case of Māʿiz and Stoning for Adultery Jurists did not always emphasize the mandatoriness of imposing ḥudūd sanctions. jurists expressed a certain amount of trepidation in imposing harsh sanctions. That is. To the contrary.”86 As later theorists would frame it. Ḥudūd Avoidance: Fairness & Moral Anxiety 1.963 (la-an uʿaṭṭil alḥudūd biʾl-shubahāt aḥabb ilayya min [an] uqīmahā fī ʾl-shubahāt. as discussed below. Muṣannaf. subservience to divine law was both the raison dʾetre for political authority and its legitimating factor. These cases reflect juristic attempts to grapple with what they took to be the dictates of the law. 17. This fact signifies the concerns they held closest to heart and that these were the arguments deemed salient and necessary if not always conducive to change. 28. Thus. no. the more concerned the scholarly classes became with insisting on those imperatives. to define their own moral authority against that of the political elite—packaged as mere subservience to divine law. a rash of reports details instances where the Prophet and his Companions or family members advised ḥudūd avoidance rather than ḥudūd imposition. 126    . as the following cases show. this ḥadīth—attributed to the Prophet via ʿAlī—comes from a 5th/11th century source that appears to have reconciled the two traditions of ḥudūd imposition and avoidance.

was later informed and cried out in dismay.. Ḥanbal (d. but they pursued him to complete the deed. 303/915). Each time. Bayhaqī (d.). Ṭabarānī (d. the Prophet asked some of Māʾiz’s townsmen about whether the man was of sound mind (fa-saʾala ʿanh qawmah hal tunkirūna min ʿaqlih shayʾan). was of sound mind. Māʿiz attempted to flee.. no. Ṭaḥāwī (d. Dārimī (d. 255/869). as we will see. 1357/[1938-9]). 6430 (relating the story of Māʿiz without naming him). 6438. The sources are replete with similar stories of individual confessions and ḥadd avoidance.. 88 Bukhārī.g. 360/970). 127    89 . Mālik. Tirmidhī (d. ibid. e. until the Prophet responded that he had just prayed with them—indicating his repentance—so God had forgiven him).g. Abū Yūsuf. Not all jurists understand the case in this way. confessing to having committed adultery.g. al-Ḥākim al-Naysābūrī (d. 319/930). 321/933).The most oft-cited example here is the infamous case of Māʿiz b. and was requesting punishment. 6437 (reporting that a man came to the Prophet confessing to having committed a ḥadd crime multiple times. 458/1066). Reports about the case are contained in all the major ḥadīth collections. Aḥmad b. Muṣannaf.88 Finally. 275/889). 241/855). Ḥāwī.87 This man reportedly came to the Prophet. 405/1015-6). Ibn Abī Shayba. no. each time renewing his confession and requesting whatever punishment was due. e. note 1 (listing sources. with Māʾiz’s attempted escape interpreted as a retraction of his confession). “if only you would have left him to perhaps repent so that God would accept his repentance (fa-hallā taraktumūh laʿallah yatūb fa-yatūb Allāh ʿalayh)!”89 The people immediately regretted what they now                                                                   87 E. Abū ʾl-Wafāʾ al-Afghānī (Hyderabad: Maṭbaʿat alWafāʾ. the Prophet reportedly sentenced him to death-by-stoning. particularly as the ḥadd sanction reportedly was in fact imposed in this case. 279/892).. The fourth time. Māʿiz came back a second time and then a third. the Prophet also suggested to Māʿiz that he had not really committed zinā but perhaps instead had merely “kissed or winked or looked” at the woman. the Prophet sent him away. 156-57 (reading the case to mean that the punishment should have been avoided. Ibn alMundhir (d. 1:206-07. to which they replied that he was. The Prophet sent him away. Ṣaḥīḥ. no. Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā. When the people began to carry out the sentence (for it was a community affair). who apparently was not present. including ʿAbd al-Razzāq (d. The Prophet. declining comment. 211/826). See. et al. See Māwardī. On some accounts. Abū Dāwūd (d. after Māʿiz insisted repeatedly that he actually had sex. Ibn Mājah (d. ed.

Later jurists cite the Case of Māʿiz for multiple points of criminal law.92 The implication is that Māʾiz’s attempted escape was either the functional equivalent of a retracted confession or suggested that he would have repented had he been let go. Qudūrī. 2:108. e. 4:128. ed. traces of which appear scantily and are rejected as significant objections—as in Khārijī objections to the punishment. 7:498 (that zinā liability requires only a single confession. Aḥmad Badr al-Dīn Ḥassūn (n.: Dār Qutayba. some jurists understand the case to require judges to question offenders for possible deficiencies that would remove ḥadd liability.90 Among them is that the case represents a precedent for and mechanisms to avoid imposing criminal sanctions. Ibid. 3:26364.understood to have been a grave error. just as the Prophet asked whether Māʿiz was of sound mind before ruling. etc.g. 128  93   . The Prophet ordered them to handle Māʿiz’s body as they would any fellow community member—shrouding him and performing the funeral prayer over him. See. and that he knows of no case where the Imām was present for the execution of the sentence: wa-mā ʿalimtu imāman ḥaḍara rajma marjūm). e. al-Tanbīh ʿalā mushkilāt al-Hidāya. 1996). whether a defendant’s expressions of repentance in ḥadd crimes suffice to cancel ḥadd liability as they do for ḥirāba. e. For example. Ikhtilāf. on the margins of Marghīnānī.93 Thus. The report is also cited for guidance on the number of confessions due for ḥudūd liability. jurists nevertheless use it as a basis for their position that the death penalty is to be avoided when a matter is first brought before the courts and even once the execution of the                                                                   90 It is chiefly viewed as one of the few instances supporting the claim that stoning is indeed the divinely legislated punishment for adultery. who is authorized to carry out the punishment. Shāfiʿī. but that Ibn Abī Laylā held the opposite view—that the ḥadd applies with confessions. Umm. See. which cannot be retracted). Jaṣṣāṣ. Ibn Abī al-ʿIzz. 156-57 (noting that he and Abū Ḥanīfa share this view.g. edited by comparison to Kitāb al-ʿInāya by Bābartī (d. 786).. even though the report records that Māʿiz was stoned to death.p. Tajrīd.g. 92 See Abū Yūsuf. 11:5949-50 (that liability is not removed with repentance and that four confessions are necessary)..91 Others add that the “ḥadd is to be avoided (yudraʾ ʿanh al-ḥadd …)” whenever the accused retracts his or her confession or repents. Aḥkām.. whether the Imām or head of state must be present in such cases. 91 See. which either way should have put a stop to the stoning. given that the sanction does not appear in the Qurʾān and was the subject of some dispute in the early community. that liability is not removed with repentance. Hidāya.

sentence has started. However. relegating the issue of guilt to a private concern between individual and God. There. al-Tafsīr al-kabīr). they use this same case and the same reasoning to apply to other non-capital ḥudūd punishments. which would have been death. in part. Islamic Societies. The woman knew that her situation looked suspicious: she was a “pregnant. (Later. Rather. This moral discomfort sparked tendencies to find excuses not to impose the sanction.) Strikingly. 3 (2004): 291-332. On the urban conditions experienced for the first time with the Arabs’ rapid migration to the garrison towns (amṣār) accompanying the spread of Islam. see Lapidus. the accused or confessor may well have violated the law. “I swear by God. thrusting                                                                   94 On privacy in Islamic law.” and so she no doubt feared the punishment—again. that: I have not taken a lover or become intimate with any male companion since I converted to Islām. previously married woman. A second report comes from Yemen.94 An illustration is a case brought to Abū Mūsā al-Ashʿarī while he served as a judge in his native Yemen. that is. issues of individual guilt or innocence seemed not really to be at issue in the above cases. “‘Do Not Enter Houses Other Than Your Own:’ The Evolution of the Notion of a Private Domestic Sphere in Early Sunni Islamic Thought. society was still as open as it was in pre-Islamic times. sometime when I was sleeping in the enclosure (fanāʾ) of my own home—by God—I woke up to find a man atop me. 317 (noting that pre-Islamic Arabs craved privacy but that existing social and architectural norms—as in the fact that Ḥijāzī homes lacked screens or doors—often frustrated that desire) (citing Fakhr al-Din al-Rāzī. 45-53. in avoiding punishment even where there was some wrongdoing jurists exhibited a discomfort with imposing the ultimate penalty of death. see Eli Alshech.” she declared to Abū Mūsā. 129    . wherein a man apparently accused a pregnant woman of having committing zinā. Yet locals had to work out the new challenges of urbanization that brought strangers rather than extended family members into the close proximity of their homes. with little sense of privacy in the domestic sphere. a generation after Māʿiz.” Islamic Law and Society 11.

The illustrious Mālikī jurist Shihāb al-Dīn al-Qarāfī reads that she was “pregnant” as in the first version. he asked her. 27. “Why are you crying?.” then speculated that “perhaps the woman was raped. that is. who then asked her people about her character and mental state.”98 She told him that she was typically a heavy (and presumably early) sleeper (innī imraʾa thaqīlat al-raʾs). I looked at him to identify him. but had no idea who he was amongst all of God’s creatures!” ʿUmar remarked that he                                                                   95 Ibn Abī Shayba. it was a pregnant woman (imraʾa ḍakhma)97 who herself came to ʿUmar in the small area called Mina near Mecca. Mudawwana. Muṣannaf.” Ibid.himself into me like an arrow. See Qarāfī. In response. ʿUmar summoned Abū Mūsā along with the accused woman and a few people from her tribe to vouch for her. When the delegation arrived. and he would impose the ḥadd sanction. a man was atop of me. he fed. But she had not. they vouched for her and praised her generously.96 In another version of the story. “I swear by God that. no. leaving him as nonplussed as she presented herself to be. but that one night she was able to stay up to perform the night prayer before sleeping. 96 97 Ibid. riding atop a donkey and crying profusely. See also Saḥnūn. “perhaps you have been raped. when I woke up. When she reached ʿUmar. the case would have fit a cut-and-dried model. clothed her. and instructed her people to treat her well. 130    . the woman repeated her story to ʿUmar. I looked at him to identify him. 7:2444 (equating sex with a sleeping woman to rape).970. (but) was left with no idea as to who he was from amongst all of God’s creatures!”95 Abū Mūsā was perplexed. 9:360-61. Instead of punishing her. If the woman had admitted to being guilty of a crime. ʿUmar surmised then that the woman was perhaps put to sleep for the perpetrator to do this deed. He wrote to the caliph ʿUmar back in Medina to ask how he should proceed. 12:60. 98 Qarāfī puts this in the second person. Dhakhīra.

But just then. arrested him. Instead. a man raped a woman while she was on her way to the mosque to perform the morning prayer. and these people overcame and arrested me. On the last comment. 8:336). the sources report that early one morning (fī sawād al-ṣubḥ). no. possibly of rape. 2)). Qaḍāyā. and above. The woman accused the man of perpetrating the rape and the group of men confirmed that they had overcome him and captured him. they heard someone in the crowd shout. Ṭuruq.891.100 In this case. he ruled that no ḥadd punishment applied because the woman neither admitted to being guilty nor was she known to be of bad moral character. an act of zinā—if strictly defined as illicit sexual relations—had taken place. so called out to them for help. she seemed to be a victim. Wasāʾil al-Shīʿa. Then they brought that man along with the victim to the Prophet to preside over the matter. and the Prophet reportedly sentenced him to death-by-stoning. pp. similar to the story of ʿAlī and the man found with the butcher’s knife recounted in Chapter 1.”99 Accordingly. 27. The story is recounted in Ibn al-Qayyim (d. As she cried out to a passerby for help.” The woman insisted that the man was the rapist. at the beginning of Chapter 1. 2:172. Muṣannaf. Sunan. but it was not clear that the woman was culpable. 751/1350).. This brings us to another case of rape. 2-3 note 2 (listing additional sources). God would punish them [the people]. note 1 (citing Bayhaqī. Clearly. 9:361. 88-89 (cited in al-Ḥurr al-ʿĀmilī (d. They caught up with the man to whom she had appealed for help and. The man demurred. his remark could be read to mean the following: “if I killed this woman standing between these two mountains.” Ibid. The text in the Muṣannaf says that ʿUmar makes reference to his fear of the fire looming as large as two sizable mountains in the Ḥijāz (called Akhshabān?) or his fear that any mistake in imposing the death penalty would be as if those mountains themselves would be set aflame (khashaytu ʿalā ʾl-Akshabayn al-nār). and the passerby took off after him. “I was the one trying to help her [catch] the rapist. the rapist fled. the meaning of ʿUmar’s actual comment is somewhat obscure. thinking he was the rapist. “Don’t                                                                   99 Ibn Abī Shayba. 100 See Qummī.feared God’s wrath “if [he] sentenced this woman to death. The editor remarks that in other variants. 1104/1692). The woman then saw a group passing by. 131    . no. 82-84 (quoting Qaḍāyā). saying.

B. ʿUmar displayed an immediate willingness to ascribe no-fault to the pregnant woman. Section III. and the victim. The Prophet tried to deter Māʿiz from confessing. Ṭuruq. Ḥanbal and Abū Dāwūd). from the collections of Nasāʾī.” but the Prophet refused. 132    . the man who had tried to help her.3. It is as if the judges in each case— the Prophet or another early authority—aimed to avoid the ḥadd punishment despite fairly solid indications that some crime had taken place. Aḥmad b. the overall thrust is toward ḥudūd avoidance. similarly coming up with the “excuse” of rape even before hearing the woman’s testimony. he released the falsely accused man and forgave the rapist. If the                                                                   101 See Ibn al-Qayyim. Instead. ʿUmar urged the Prophet to “stone the one who confessed to zinā. saying that he had repented. On the discrepancies. respectively—even in the face of probative testimony or seeming evidence of foul play.101 The Prophet’s decision here accords with the reports of his treatments of Māʿiz followed by ʿUmar’s treatment of the mysteriously-impregnated woman. How to explain these cases? This trend of ḥudūd avoidance here appears to not go well with the previous insistence on ḥudūd enforcement meant to counter status hierarchies and policies of elite undercriminalization and to maintain a sphere of jurisdiction to balance against such policies pursued by the political authorities. see below. And the Prophet and ʿAlī declined to punish men who in two cases had admitted to the most serious of crimes—rape and murder.stone him. In this line of cases. he came up with excuses for him and then censured the people for carrying out the ḥadd sentence after Māʿiz tried to escape. 84-89 (citing multiple versions and discussing discrepancies as to what actually happened. stone me! I am the one who committed the crime against her!” Now all three parties stood before the Prophet: the man who had raped the woman.

Here. specifically unwarranted ḥudūd avoidance for certain classes. 133    .” 233ff. the evidentiary burdens were high—requiring four witnesses to the sex act for an adultery conviction or that those alleging homicide swear fifty oaths                                                                   102 That is. the crimes had been established by confession or proved and the only question was whether there was cause for avoiding the sanction. Instead. The previous set of cases involved mutilation (hand amputation for theft) and corporal punishment (flogging for drunkenness). the difference in treatment had to do with the nature of the punishment: death. the whole thrust of the claim against preferential treatment in the law was to highlight and oppose arbitrarily differential treatment. While these sanctions appear to the modern eye to be extremely harsh. they in no way compare to the harshness and irrevocability of death—even to the medieval eye accustomed to mutilation as a common criminal sanction in many legal traditions. rape. those of Fierro in “When Lawful Violence Meets Doubt. Already. the common thread is that the death penalty is the sanction for the acts in question: adultery. that aim was not served by making exceptions to the enforcement rule. With status hierarchies in mind. So what was the basis for pursuing that track of avoidance now? I want to argue that—counter to some initial conclusions otherwise102—status hierarchies were separate from the jurists’ concerns at the heart of these decisions emphasizing ḥudūd avoidance. murder.jurists aimed to enforce ḥudūd laws to serve their claim to the moral authority to insist on doing so. questions of culpability arose from evidentiary infirmities. guilt was not at issue. In the previous set of cases. Here.

286–89 (Brennan. As had judges in the American context when deciding on the constitutionality of the death penalty. See Gregg v. see Qurʾān.103 Further. These concerns were also manifested in them treading cautiously when it came to matters of life and death. and for the related four-oath procedure of mutual imprecation (plus a fifth invoking God’s wrath for lying) for spousal accusations of zinā.”104                                                                   103 For the four-witness requirement for zinā. 468 U.. 104 Constitutional challenges to capital statutes for arbitrary enforcement persuaded the Supreme Court in Furman v. JJ.S. some Justices explained that capital punishment had to rest on rational and fair procedures because of the finality and irrevocability of death. called liʿān. 469 U.. 305 (1976) (joint opinion of Stewart.. J. Powell.”). concurring in part and dissenting in part) (repeating that the “death penalty is qualitatively different . concurring) (“The penalty of death differs from all other forms of criminal punishment. Wainwright v. “Origins of the Qasāma Procedure. Spaziano v. and Stevens.S. even where guilt was not at issue—as in the case of Māʿiz—the Prophet sought to avoid punishment even to the point of avoiding trial! These heightened procedures correlate directly with the high stakes of the death penalty and the jurist’s regard for the gravity of taking life— the preservation of which jurists take the Qurʾān to emphasize as one of the core values it aimed to promote. ibid. See ibid. and Stevens. 412.) (“[The] penalty of death is different in kind from any other punishment” and “unique[]. Georgia. 433 (1980) (imposing special procedural safeguards for defendants in capital cases in recognition of the difference of death).. 420. Florida. based on reason rather than caprice or emotion. Woodson v. Florida.S. Witt. see Qurʾān 24:7.about the liability for a murder.” 132-67. is in a class by itself”). JJ. Godfrey v. Constitution. concurring) (“[d]eath is a unique punishment”. 280. 9. 349. 459 (1984) (citing the Court’s prior recognition of the “qualitative difference of the death penalty”). North Carolina. 446 U.. at 468 (Stevens.”).S.S. 430 U.S.. 4:15. 463 (1985) 134    . and appear to be. Ohio. J. In a divided Court. 357.S.. these cases show how Muslim jurists used heightened procedures to declare that “death is different. 447. was the juristic solution to observing the moral imperatives to preserve life. on the fifty-oath procedure called qasāma. 153. not in degree but in kind. 188 (1976) (joint opinion of Stewart. ibid.. 358 (1977) (“Death is a different kind of punishment from any other that may be imposed in this country. Lockett v. Georgia. More procedure..S. and hence must be accompanied by unique safeguards”). Georgia. J. the Court regularly has recognized the principle—though with an increasingly critical eye since the late 1980s.S. see Peters. which shaped strategies for ḥudūd avoidance.”). 306 (Stewart. “[d]eath . 428 U. however long.”). Gardner v. 438 U. 604 (1978) (“[The death penalty is] qualitatively different”)..) (“[The] penalty of death is qualitatively different from a sentence of imprisonment. Powell. to strike down three death sentences and impose a moratorium on the death penalty as “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments of the U. 238 (1972). 428 U.” and thus requires any decision imposing death to “be. 586. 408 U. the judge in each case finds (or creates) some evidentiary doubt that calls individual culpability into question. Since.

542 U. Maryland. 481 U.S. in numbers never imagined before the development of DNA tests … [places us] in a period of new empirical argument about how ‘death is different. concurring in the judgment) (“The Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty.S. J. dissenting) (referring to the “dramatically different nature of death”). dissenting) (“[It] hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. 363 (2004) (Breyer. Atkins v. dissenting) (citing the “previously unquestioned principle” that the death penalty necessitates unique safeguards because it “qualitatively different”). J. Marsh.. signifying the ideals governing the application of criminal jurisprudence and providing the backbone of the chapters on criminal law in legal treatises.. while the “Eighth Amendment contains no [comparative] proportionality guarantee. 536 U. 163. Michigan. Kemp.. 135    .”).S.. Ct.. Kansas v. 129 S. The realities had both this-worldly consequences and otherworldly ones—particularly when they involved death. 482 U. 957. 1520.S. As such. Quarterman. California. Harmelin v. … more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders. 1550. J. it can be fairly posited that the selective preservation of these reports reflects the moral anxieties facing these jurists who had claimed the moral-epistemic authority to interpret the law but were also cognizant of the harsh realities of institutional violence that they saw virtually unregulated in the political sphere. McCleskey v.” capital cases should be reviewed for proportionality because death is different).’”) (citations omitted).S. death-is-different jurisprudence”). Abdul-Kabir v.”). 564.S. 550 U. 501 U. 584. Ct.”) [overruled on different grounds by Payne v. J. Tennessee.These reports were carefully selected. 605–06 (2002) (affirming that “no doubt [ ] ‘[d]eath is different’”) (citation omitted).S. Kelly v.. see Baze v.. It is caprice. __ U. concurring in the judgment) (“[Despite] our decisions rel[ying] on the premise that death is different from every other form of punishment to justify rules minimizing the risk of error in capital cases … [i]ronically. 548 U. Virginia. J.”).”). J. and retold in abundance by jurists of the second and third centuries and afterward. J. 337 (2002) (Scalia..S. no one can be at ease with the stark reality that this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row. Ring v. They were anxious over the consequences of not getting it right. dissenting) (“Whether one regards improvised death-isdifferent jurisprudence with disdain or with approval. On the recent trend toward less procedure in capital cases. and jurists thought themselves accountable before God for                                                                                                                                                                                                 (Brennan. 279.S. Rees.12 (1987) (“[Death is a “punishment different from all other sanctions. __ (2008) (Stevens. __ U. 501 U. J. dissenting) (complaining that the majority opinion holding it cruel and unusual to punish retarded persons with death is the “pinnacle of . dissenting) (“[R]epeated exonerations of convicts under death sentences. Schriro v. 509 n. Arizona. __ (2008) (reviewing death-is-different jurisprudence). Summerlin.. 233. 340 (1987) (Brennan. 808 (1991) (allowing victim impact testimony in capital proceedings)].. 536 U.S. 965 (1991) (holding that. 210 (2006) (Souter. 348. 284 (2007) (Scalia. … This is not justice. 614 (Breyer. 208.S. Booth v. 496. 128 S.. ibid. 304. packaged.

But ʿAlī is a major factor in the equation from both Sunnī and Shīʿī perspectives.” Qāḍī Nuʿmān. Notably. 136    .arrogating to themselves the right to take life or punish without clear sanction from the laws that had been outlined in the foundational texts. letter no. justly. 38/658). equity. ʿAlī advises his companion to be mindful of his godly duty to provide good governance and cautions him to deal justly with the people on the basis of common religion and humanity: “Treat your subjects well. 53 (wa-ashʿir qalbak al-raḥma liʾl-raʿiyya waʾl-maḥabba lahum waʾl-luṭf bi-him. the passage reads “they are your brethren in lineage” instead of “religion. and distinction-by-piety in his judicial decisions and other governmental-legal policies. The sources portray ʿAlī as having insisted on principles of justice. In the opening section of the letter. on the occasion of his appointment as governor of Egypt. Alongside the judicial decisions—discussed at length below—one display of these principles appears in a celebrated letter of investiture and advice to a deputy. do not be like a voracious predator over them. al-Ashtar al-Nakhaʿī (d. compassionately. In Qāḍī Nuʿmān’s version of the letter. Nahj al-balāgha. Until now. Later commentators illustrate this point by placing particular emphasis on the judgments and governing policies of ʿAlī. Mālik b. 1:417 (fa-innahum ikhwānuk fī ʾl-nisba …). this version does not mention lineage or status as the basis for just treatment. Daʿāʾim. for surely they are of two categories—either your brother in religion or your equivalent in humanity—so overlook their faults and turn away from their deficiencies. Naturally. Shīʿī jurists take him to be the paragon of virtue and just rule in all spheres—political and religious—as the Imām in closest and longest contact with the Prophet and the only Imām to have had both effective political and spiritual rule. 426-45. consuming their wealth [literally: food].”105 The letter has been                                                                   105 Al-Sharīf al-Raḍī. unlike another recension recorded in the Ismāʿīlī context. we have been concerned with decisions in the larger proto-Sunnī context. wa-lā takūnanna ʿalayhim sabuʿan ḍāriyan taghtanim aklahum fa-innahum ṣinfān immā akh lak fī ʾl-dīn wa-imma naẓīr lak fī ʾl-khalq yafruṭ minhum al-zalal wa-taʿriḍ lahum al-ʿilal).

taken as a model for Islamic political theory.”108 In our context. 1936). and 6:228-29.109 Strikingly. The cases reported about ʿAlī as preserved in the ʿAlid community and repeated in the Sunnī circles are noteworthy also because of their provenance. see Wadād al-Kadi. as the earliest and most detailed work of its type. al-Dharīʿa ilā taṣānīf al-Shīʿa (Najaf: Maṭbaʿat al-Ghārā. 3:424-31. in another context. “An Early Fāṭimid Political Document. Rawḍa and others).” Studia Islamica 48 (1978): 71-108. 75-76 (concluding that there were two main recensions of the letter—a Maghribī one that appeared in the first half of the 4th/10th century and was used by Qāḍī Nuʿmān. Rebellion and Violence. 1975). and translations on the ʿahd alone in addition to the dozens of commentaries and super-commentaries on Nahj al-balāgha (which contains the ʿahd in letter no. See ʿAbd al-Zahrāʾ al-Ḥusaynī al-Khaṭīb. he draws on Shīʿī judicial records for his own source material. despite the fact that Mālik al-Ashtar never actually took office. the influential Sunnī jurist Ibn alQayyim too specially highlights ʿAlī’s criminal decisions as exemplary and indicative of sharp judicial insight closely attuned to Islam’s moral imperatives. 13:373-75. 53). “when it comes to Muslims fighting each other. 1964). and an ʿIrāqī one that appeared in the last decades of that century at the latest and that is included in the Nahj). 137    108 109 . 7:187-207. For example. 4:118-20. Ṣubḥ al-aʿshā fī ṣināʿāt al-inshāʾ ([Cairo]: al-Muʾassasa al-Miṣriyya alʿĀmma liʾl-Taʾlīf waʾl-Ṭibāʿa waʾl-Nashr. There are dozens of commentaries. ʿAlī is credited with being a main source—alongside the Qurʾān—for the Islamic law of rebellion. See Ibn al-Qayyim. monographs. 43ff and passim (discussed below). 821/1418). Maṣādir Nahj al-balāgha wa-asānīduh (Beirut: Muʾassasat al-Aʿlamī liʾl-Maṭbūʿāt. 34 (ʿAlī al-qudwa waʾl-muʿallim) (quoting Simnānī. For a discussion of the different recensions of the letter and questions of authorship that arise in both Sunnī and Shīʿī literature. They appear in                                                                                                                                                                                                 This second version is possibly a corruption of the text (nisba for dīn and ikhwānuk for akh lak) that may have been inadvertent and/or indeed have reflected a norm in that community of differential treatment on the basis of status. Muḥammad Muḥsin Āghā Buzurg al-Ṭihrānī. Ṭuruq. This. 15:362-63 (on the ʿahd). 107 106 See Qalqashandī (d. 14:111-61. Abou El Fadl. especially in the Shīʿī context.107 Sunnī jurists also hold ʿAlī in high regard so far as it concerns other legal principles and judicial policies. In fact.” multiple legal treatises point to “ʿAlī [as] the example and the teacher.106 The letter also appears in the collections of documents intended to provide judicial and administrative guidance in the Sunnī context. since he was poisoned in a town near the Red Sea before he ever got to Fusṭāṭ. 24:412-13 (on Nahj).

al-Zanjānī (Qum: Muʾassasat al-Nashr alIslāmī al-Tābiʿa li-Jamāʿat al-Mudarrisīn. 1407/[1986-7]): 323). and incorporated into it other material he had heard from the latter from or about ʿAlī. indicating that Muḥammad b. In this compilation. The earliest available written materials recording ʿAlī’s judgments in more than just passing reference hail from the mid-2nd century: Abū ʿAbd Allāh Muḥammad b. 151/768-9) collected judgments in his “well-known” work. though penned during his lifetime.. Qays al-Bajalī (d. but it may also indicate a high degree of concern with moral and institutional jurisdictional concerns expressed through criminal law. Qays took a copy of that earlier work. as described below. about half are criminal decisions. Qays al-Bajalī (Qum: al-Markaz al-ʿĀlamī liʾl-Dirāsāt al-Islāmiyya. ed. Ibid. There are many quotations from this author of material that relates to the topic of this work … . Rijāl [= Fihrist asmāʾ muṣannafī ʾl-Shīʿa]. wherein the editor has attempted to collect all of the quotations attributed to the above-mentioned book in order to reconstruct it. 450). Bajalī’s work probably incorporates material from earlier sources endorsed by the Fifth Imām Muḥammad al-Bāqir (who died a few decades before him) to which he added material. M.111 The book may have in turn served as a basis for Ibrāhīm alQummī’s later collection of a similar title with many more additions. I have omitted citation to the second version unless there is some material difference between the two texts.”). Musnad Muḥammad b. ʿAlī al-Asadī al-Kufī alNajāshī (d. The work has been published as an independent volume. See Bashīr alMuḥammadī al-Māzandarānī ed.. Sh. 346 (“The beginning sentence of the work quoted in Fihrist: 108 is the same as that of the similar book by ʿUbayd Allāh b. NB: The editor of Qummī’s Qaḍāyā prepared a critical edition of that text. strikingly. The high percentage of criminal cases may be coincidence. which was endorsed by Muḥammad al-Bāqir as in Fihrist: 108. These decisions would have served as legal                                                                   110 See Modarressi. Tradition and Survival. 138    112 111 .records of a community that was out of political power and had no easy hope of gaining it back at the time its members made these records. Kitāb Qaḍāyā Amīr al-Muʾminīn (“The Book of Commander of the Faithful [ʿAlī]’s Judgments”).112 The most comprehensive collection of the early period reporting his judgments at length is that of Ibrāhīm al-Qummī. 1409/[1989]). 346 (quoting Abū ʾl-ʿAbbās Aḥmad b. for which he notes two different versions of the text on the basis of different manuscripts. Abī Rāfiʿ … as given in Najāshī: 6.110 In addition.

That is.commentary and critique of criminal law practices and legal doctrines in the majority community.e. 218. always represented an implicit challenge or critique to the mainstream actors based on a heightened sense of moral consciousness. but jurists concerned with those contours and relationships of others (i. As such. Their relegation to the sidelines in significant measure for some time meant that Imāmīs could maintain a more moralistic tone. with no real hope for political power. Shīʿī discourse was moralistic and “affirm[ed] a high ideal. these jurists were not concerned directly with balancing their power against that of the state. these records and others show emphatically that they did. Rebellion and Violence. See Abou El Fadl. the collections of his judgments represent not perspectives of jurists attempting to define the contours of their own jurisdiction and relationship with political authorities (as in the Sunnī context). and—as has been observed—often did display a decidedly moralistic bent. 139    .. 295-320 (quotation on p. the Sunnī jurists and the political authorities).113 The records of ʿAlī’s judgments then offer a vision of what proper criminal jurisprudence                                                                   113 One scholar notes that. in discussions of rebellion in Islamic law. The Shīʿī community’s removal from the mainstream community offers an opportunity to gain insights into that community’s aspirations and regard for the law depicted through ʿAlī as the foremost legal authority after the Prophet. Yet it is to say that their main interest was in preserving records of the proper laws—and as such. 319).” in part to accord with their unique theology concerning leadership and in part because of their separation from and opposition to the broader Sunnī community that had control over political leadership. That is not to say that they did not comment on criminal and other public laws. and thereby would have provided a useful vehicle for articulating the Shīʿī community’s moral concerns designed to critique if not rein in the state excesses.

he comments that they are explicable because they come from the pen of a community member who is out of power but seeking to recognize.D. could only appear in the literature of a people who had neither state nor an army of their own. the judgments depict him placing a heavy premium on ḥudūd avoidance while maintaining the rule of mandatory enforcement of ḥudūd laws— however reluctantly. it might be said. He is plagued with an extreme moral anxiety about getting it                                                                   114 Similar arguments have been made about the writings of the Jewish community. Cf. which was accustomed to being out of power. see Mark Cohen.ought to be in a regime concerned first with moral precepts of justice and subservience to divine will. ʿUmar often features prominently in the Sunnī criminal law reports. (Recall that ʿUmar and ʿAlī both were held up as exemplars of law as opposed to ʿUthmān. 2.” However. 2005): 65-81. 65 (quoting S. 168 (“‘When siege is laid to a city for the purpose of capture. Man of Action: A Revision of the Master’s Biography in Light of the Geniza Documents. ʿAlī: Exemplar of Justice Records of ʿAlī’s criminal law judgments fall into three broad categories. See Michael Walzer. “The Trias of Maimonides. and call for vindication of the rights of the powerless. Daniel Marx. but elaborated notions of public law nonetheless. they show his jurisprudence as morally engaged and. “Maimonides. but only on three. arguing that Maimonides was a “man of action” intent on “remov[ing] significant divergence(s) between law and [the ‘Islamic’] society [‘in which he lived’]. Georges Tamer (Berlin. and that. 1980): 155-67). Moses Maimonides. 140    .”) (quoting Maimonides). New York: Walter de Gruyter. Gérard Nahon and Charles Touati (Louvain: Peeters. third. Goitein.). That is. How is it possible to ‘surround’ a city on three sides? Such a sentence. highlight. An example is the writings of celebrated 12th century Egyptian scholar and philosopher of Jewish law with close connections to the Muslim community.” in Studia Judaica: Forschungen zur Wissenschaft des Judentums. ed. It is an argument offered not from any military perspective. Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books.’ But this seems hopelessly naive.”— though presumably outside the realm of criminal law. With the stated intent of examining “practical morality” through combing the judgments and justifications contained in historical cases. as subservient to God’s will. in order to give an opportunity for escape to those who would flee to save their lives … . they are designed to show his superior judicial acumen. presented at the Law and Public Affairs LEGS Seminar in December 2008) (noting a trend in Jewish law of rabbinic interpretations of criminal punishments as atonement and a tendency to eliminate capital punishment as a justiceregarding strategy of a minority community charged with interpreting public laws over which it has little actual sway). ed.” in Hommage à Georges Vajda: études d’histoire et de pensée juives. First and foremost. especially as pitted against the representative of the Sunnī tradition in ʿUmar. Second. xv. Michael Walzer finds Maimonides’s rulings on conventions of war implausible at best and observes that they might even be regarded as “hopelessly naïve. 1977). For an alternate view. it may not be surrounded on all four sides. after the Prophet. “Perjury and the Power of the Court” (unpublished paper. but from a refugee perspective.114 The following section examines those decisions.

Bāqillānī. See Aḥmad b. Muḥibb al-Dīn al-Ṭabarī. ʿUmar In a typical scenario displaying ʿAlī’s superior approach to criminal law. 141    . who then claimed she was married although the husband had not yet returned) (citing variants in Ibn Bābawayh. Observing this gradual turn of affairs over the years. Muḥammad alDaylamī. Irshād. Abū ʿUmar. al-Ḥasan b. and in ḥadīth analyses from other sources. Ikhtiṣāṣ. Fatḥ al-bārī. 1401/1981). Ibn Bisṭām]. He remarked that “women are unable to carry someone like [as great as] ʿAlī. The husband eventually claimed paternity (rightly or wrongly). idem. idem. al-Muttaqī al-Hindī. Manṣūr b. then what about her son?” He managed to convince ʿUmar to delay the sentence until the woman gave birth. Qaḍāyā. Kifāyat al-ṭālib [fī manāqib ʿAlī b. Mustajād. Ibn Shahrāshūb. Istibṣār. Sunan. Ṭūsī. Muḥsin al-Amīn. if it were not for ʿAlī. Ghazawāt Amīr al-muʾminīn. see ibid. which would have been incorrect so long as the husband claimed the child. Yanābīʿ al-mawadda. Muẓaffar. idem. Majlisī.wrong and thereby violating the very moral imperatives and subservience to divine legislative will that he sees as underlying the criminal law regime. Irshād al-qulūb. Kanz al-ʿUmmāl. Zayn al-fatā. ʿĪsā b. al-Sayyid Muḥammad al-Muʾayyad al-Ḥusnī?. idem. Ibn Abī al-Ḥadīd. Judicial Acumen: ʿAlī vs. For a similar case. collected and commented upon by Muḥammad b. Manāqib. [I] would be at a loss!”115                                                                   115 Qummī. ʿĀṣimī [sic = pseudo-ʿĀṣimī.. 248/362). and came back to find her pregnant. 4:204. Qundūzī. Kanjī. including additional Sunnī compilations: Bayhaqī. ʿUmar’s immediate reaction was to command that she be stoned for infidelity. Manāqib. Maʿādin al-jawāhir. al-Iṣāba. al-Riyāḍ al-nāḍira. Tahdhīb. Tamhīd. Yazīd al-Murādī al-Kūfī ([Yemen]: Yūsuf b. he rushes to ʿUmar. ʿIlm. al-ʿAllāma al-Ḥillī. Khwārazmī. Kashf al-ghumma. a. This same sentiment appears elsewhere in the Zaydī law. 119 (law lā ʿAlī la-halaka ʿUmar) (citing variants in Mufīd. Abī Ṭālib]. Dalāʾil al-ṣidq. Zayd (d. When ʿAlī hears of the decision. Jaʿfar al-Naqdī. Sharḥ Nahj albalāgha). he hears of a case where ʿUmar has sentenced a woman to death. Biḥār al-anwār. as he now did. Her husband had been absent for two years. saying “if this is your decision as to the woman. al-Ḥurr al-ʿĀmilī. Amālī (also called Kitāb al-ʿUlūm). Dhakhāʾir al-ʿuqbā. Ibn Ḥajar. recorded in the same period and appended to a different scenario in which ʿAlī instructs ʿUmar in ḥudūd avoidance based on evidentiary infirmities. Kashf al-murād. ʿUmar regretted his initial decision to sentence the woman to death. Faqīh. Wasāʾil). 1:25. 263-64 (a second version not involving ʿUmar and where people testified against a woman. then until the baby had grown teeth.

H.” Studia Islamica 78 (1993): 5-26. “Al-walad li al-firāsh. “The Muṣannaf of ʿAbd al-Razzāq al-Ṣanʿānī as a Source of Authentic Aḥādīth of the First Century A.and early Islamic societies. see Qummī. Juynboll. 10. idem. and had ʿUmar carried out the sentence before the child was born. This is what is at stake in another famous maxim circulating during this period—“the child belongs to the marital bed (al-walad liʾl-firāsh). ʿAlī returned the slavewoman to the initial owner but imposed no ḥadd punishment. Ḥadīth: Origins and Developments (Aldershot: Ashgate Variorum. regardless of whether he had actually been present to father the child. The paternity claim took precedence over the adultery accusation. Roman. 142    118 . 96ff (collecting Schacht’s references in five other works. 18. see Harald Motzki.” Arabica 39 (1992): 287-314. see also Crone. G. Anfänge/Origins. idem.116 Sexual relations were fluid in pre. commanding instead simply that the son stay with the slave-driver who had actual paternity). and challenging his attribution of this maxim to Roman law). ed. Joseph Schacht first makes reference to this maxim in a half-page discussion in his The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press.” Journal of Near Eastern Studies 60 (1991). 126. Uri Rubin.” the origins and function of which scholars have debated at length. Provincial and Islamic Law. Several scholars have focused on this maxim in their treatments of early ḥadīth literature to challenge Schacht’s initial characterization of it. “Some Notes on Islam’s First Fuqahāʾ Distilled from Early Ḥadīth Literature. Qaḍāyā.In the end. 10. That is. Provincial and Islamic Law..” Der Islam 63 (1986): 192-218. See Harald Motzki. Roman. “Wal-muḥṣanātu mina n-nisāʾi illā mā malakat aimānukum (Koran 4:24) und die koranische Sexualethik.. assigning paternity was a significant problem of illicit sexual relations that resulted in pregnancy. this case turned into one that was more about formalities surrounding paternity than actual infidelity.118 This is also what was at stake in defamation and cases of mutual                                                                   116 For a case that similarly deals with paternity under the guise of an adultery claim. the later paternity claim would have retroactively rendered that sentence erroneous. 96ff. Crone. if the husband claimed the child. 128-30.117 For a society in which status and social entitlements were determined on the basis of family and tribe. 264 (second version) (addressing circumstances of a slave-driver having sex with a slavewoman while the actual master or owner is gone. and the Qurʾān’s sexual ethics emphasized regulating them. 117 For an excellent discussion. 2004) (Introduction). 1950). the ḥadd punishment for adultery could not have applied.A.H. 181-82. and ʿUmar would have felt the spiritual brunt of that decision.

she placed egg yolk on her clothes and then came to ʿUmar. ʿUmar immediately decided to punish the man. A woman in Medina took a liking to a neighbor (an Anṣārī man). both ultimately deferring judgment on the truth of the matter to God in the afterworld. ʿAlī’s judgment. Crime and Punishment. ʿAlī saved another man from ʿUmar’s quick and harsh judgment. there. the interest of arguing that this non-Qurʾānic punishment is valid takes precedent over the concern with leniency born of moral anxieties that appears in this and other reports of the Prophet’s criminal law punishments. Sunnī sources regularly depict the Prophet as having done the same thing—turning away a pregnant woman who had confessed to adultery until she had had the baby. 159. see above. here. She devised a scheme hoping to trap him into marrying her or else risk being punished.imprecation (liʿān). But ʿAlī again intervened at the Anṣārī man’s request. the concern with these issues was not with factual truth (if indeed it could be known) but legal truth and resolution of a very real social problem: to which family should the child be attached? The “paternity maxim” and. 195. note 103. or he helped engineer matters such that they would. reluctantly imposes the ḥadd punishment. But in those stories. the Prophet finally. The husband’s eventual “admission” of paternity—however dubious—eventually served to cancel ḥadd liability. Given the high stakes of criminal sanctions and of disassociation with any family. but was unable to attract his interest. sought a pragmatic solution that would avoid the harsh consequences of a capital case on facts of which he could not reach 100% certainty. presumably sentencing him to death (for adultery or rape). See also the brief discussion in Peters.120 In second case. ʿAlī had a hunch that events would take this turn. claiming that the man had had sex with—or possibly raped—her. and thereby avoided imposing the ḥadd punishment that ʿUmar was so ready to impose. ʿAlī worried about imposing the                                                                   119 For a definition. nursed him for two years. 63. The stories are adduced to prove the validity of stoning and the necessity of imposing even that harshest of ḥadd punishments.119 where a husband accuses his wife of infidelity but she declares her innocence—both through oaths. 143    120 . and raised him until the age of discernment.

a woman came to him accusing an orphan girl in her care of committing zinā (fornication) with her husband. Amīnī. through their testimony. Maʿādin aljawāhir.”121 Again. ʿUmar was unsure how to decide the case. Qaḍāyā. gender seemed not to be at issue. Mufīd. But here. Irshād. The orphan denied the charges. al-Ḥurr al-ʿĀmilī. Karājikī. Tahdhīb al-aḥkām. it became apparent that the girl was no longer a virgin. ordering each to a different room to be questioned                                                                   121 Qummī. He separated the women. The woman confessed to the set-up. he ordered that the woman’s garments be dipped in boiling water. ʿAlī added heightened requirements before he would accept the women’s testimony for a crime involving the death penalty. ʿAlī shows his cunning again—this time. Majlisī. Khaṣāʾiṣ al-Aʾimma. Wasāʾil al-Shīʿa.death penalty on such thin evidence. the burden of proof was. and the report states that “God had [thus] averted the punishment from the Anṣārī man by means of ʿAlī. as is now to be expected. and she presented several of her neighbors to corroborate story. al-Ghadīr). The Qurʾān itself required that accusations of sex crimes be proved by four witnesses to the act. 140 (wa-dafaʿa Allāh ʿan al-Anṣārī ʿuqūbat ʿUmar bi-ʿAlī) (citing variants in Kulaynī. and jurists interpreted that rule as referring to male witnesses—placing severe restrictions on women’s testimony in criminal cases. In a final. Kanz al-fawāʾid. Muḥsin al-Amīn. and asked ʿAlī for his advice. saving an orphan from an unjust accusation. Ibn alQayyim. Nonetheless. Biḥār al-anwār. under ʿUmar’s reign. ʿAlī asked the woman to produce evidence. Kāfī. Ṭūsī. the sources depict in ʿAlī a tendency toward lenience in the face of harsh justice and that his conscience led him to focus on getting to the core of the matter before making a decision so grave as a sentence of death. Again. fairly sensational case. and this showed that the substance on her clothes was mere egg yolk. This time. al-Sharīf al-Raḍī. 144    . Ṭuruq. surmising that there might be some foul play at work.

She explained that the woman was raising the orphan with her husband. including Jāḥiẓ. 146-47 (the case of ʿAlī followed by the story of Daniel) (cited in Kulaynī. see also Ibn al-Qayyim. and separated her from her husband—marrying him to the orphan instead. regular punishments for defamation and taking virginity. and other literary sources. fearing that when her husband returned from his travel. 123 E. 145    . Faqīh.. Ṭuruq. ʿAlī appears the cunning wise advisor. Kitāb al-ʿUthmāniyya and Ibn Ṭāwūs. and that his judgment was following that precedent. and this caused the woman to feel insecure. ʿAlī sentenced the wife to receive the ḥadd sanction for the crime of defamation. The corporal punishment and monetary fine are the expected. Ibn Bābawayh. Choosing ʿUmar as the symbol of power makes sense if Shīʿī scholars were searching for a good candidate for a harsh law-and-order personality against which to pit a more lenient ʿAlī amongst the early Islamic authorities.g. Kāfī. As such. The marital separation and re-marriage reported here is irregular—perhaps unique—as it is unattested in any legal source and I know of no other instance in records of judicial cases. respectively. He asked each if she would retract her testimony. it may be a case of gilded embroidery—the narrator or copyist’s embellishment to the punishment to emphasize the wrongheadedness of the wife and what he takes to be the justice of ʿAlī. We held the girl while she took her virginity with her finger. Bināʾ al-maqāla al-Fāṭimiyya [fī naqd al-Risāla al-ʿUthmāniyya]).122 * * * In all of these cases. made her pay a penalty of 400 silver pieces. Tahdhīb al-aḥkām. the case of the pregnant woman above.123 ʿUmar is more often depicted even in Sunnī literature as one                                                                   122 The report remarks that ʿAlī was the first to have separated witnesses to get the truth after the Prophet Daniel.. but they all refused initially. Ṭūsī. quick to interrogate the evidence and slow to punish in the face of a ruler-judge represented by ʿUmar who has quite the opposite tendencies. Despite his appeal as exemplar in some criminal cases in which he champions lenience.separately. ʿAlī kept pressuring them to tell the truth until one woman looked up to ʿUmar and begged for immunity if she did. notes 95-99 and accompanying text. So she gave the girl wine to drink and called us for help with her scheme. See ibid. The orphan grew into a beautiful young woman. who was often traveling on long trips for business. 84 (quoting Qaḍāyā ʿAlī). he would take up with the orphan.

Taking these expected effects as a proxy for the act of drinking itself. 179-81. discretionary criminal punishments. Ṣaḥīḥ. and blood money). A portrayal of him as exerting limitations on flexibility is a tendency. 146  126 127   . “Early Debates. Shāfiʿī. and this rule was folded into the very concept of shubha. typically involving wine-drinking or music-playing in private). no. as one scholar put it. but a tendency to go too far. and increased the punishment to eighty lashes. cf.quick to volunteer to take a sword to someone’s head for the slightest disrespect to the Prophet or hint of wrongdoing. Falsafat al-tashrīʿ. 125 See Maḥmaṣānī. See Bukhārī. New York: Cambridge University Press. Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge.127                                                                   124 Michael Cook. Umm (1961) 6:144. zinā. he concluded that winedrinking engenders raucousness and loose tongues that are likely to defame others. al-Khaṭṭāb: listing his policies that had lasting legislative values in areas of the state land tax and the religious poll tax.125 Most infamously in the criminal law context. he legislated that the punishment for wine should include what he took to be its inevitable effect. as an illustration of ḥadd-averting doubt. family law. 6086. having consulted with ʿAlī. “the Sunnī sources [portray in him] the image of a man with his heart in the right place. This same list given by Maḥmaṣānī notes that ʿUmar suspended the ḥadd punishment for theft during times of famine. 227-32 (sābiqāt ʿUmar b. 2000).126 Also in the criminal context.”124 He is also the one credited with instituting a number of post-prophetic policies that endured as permanent features of Islamic law.” 10. Modarressi. the sources portray him repeatedly insisting that death-by-stoning is the appropriate punishment for adultery—saying that it was actually a Qurʾānic verse that was left out and that he feared that one day people would not apply it. sometimes with criminal law implications. tending to limit flexible aspects of existing law and impose additional burdens. he reportedly doubled the punishment for drinking wine from the forty lashes that the Prophet is said to have legislated. 81-82 (citing examples of his excesses in cases of wrongdoing. theft. not an absolute.

ʿAlī sentenced the man to death. to highlight the extent to which ʿAlī exemplifies the broader principle in the Sunnī context as well about the dramatically different nature of death that requires heightened procedures before ḥudūd convictions and sentencing. I will (in shiʾti an nuqīlaki uqilnāki). Musnad. she perjured herself and accepted the ḥadd sanction                                                                   128 I borrow this title from a reference in Schriro. Zayn al-Fatā. Majlisī. ʿAbd Allāh b. He told the woman. ʿAlī continues his orientation against harsh justice.. Kulaynī. Bajalī. Kāfī. ʿAlī did not ask after her. pseudo-ʿĀṣimī.129 In another version. idem. if you are lying. Qummī.These Shīʿī reports take ʿUmar to be doing more than that.” Before they proceeded any further. Daʿāʾim. the call to prayer was sounded and ʿAlī stood up to pray. but when the woman saw that those were the consequences. Qaḍāyā. so she simply left and did not return. ʿAlī—as the wise. Ibn al-Athīr. In one case. Nihāya. al-Ḥurr al-ʿĀmilī. ʿAlī wanted to underline the gravity of the accusation. 109 (citing variants in Ibn Bābawayh. The woman mulled over the matter. respected advisor in these criminal law cases saving condemned defendants from ʿUmar’s zealousness—is sending a message and demonstrating lessons of proper leadership to Sunnī rulers of these later periods. and did not like her options. and if you want me to overlook [this matter]. Qurb al-isnād. Istibṣār. Jaʿfar al-Qummī. I will stone him.S. saying that he had secured his wife’s permission. Faqīh. Qāḍī Nuʿmān. 147    129 . Biḥār al-anwār. but was not as concerned with actually imposing a punishment for it. Tahdhīb al-aḥkām. Ḥudūd Avoidance: Death is Dramatically Different128 In another series of cases with less explicit references to ʿUmar. and other sources). they take him to be representative of the harsh and excessive policies that the Umayyads and early ʿAbbāsids pursue in their own times. The man denied any wrongdoing. b. 542 U. I will impose the ḥadd sanction on you for defamation. J. at 363 (Breyer. a woman accused her husband of sleeping with a slavewoman who belonged to her. Wasāʾil al-Shīʿa. “if you are telling the truth. dissenting) (referring to the “dramatically different nature of death”). Ṭūsī.

because the man was away from his family.g. though it is unclear whether heterosexual or homosexual. (Apparently. 2:108. where he had committed adultery. ed. Aḥkām al-Qurʾān.ḍ. See also below. al-Muʿtamad fī uṣūl al-dīn. insisting that stoning was not Islamic or Qurʾānic.. See. 68. Shahrastānī (d. he said. ʿAbd al-Amīr ʿAlī Muhannā and ʿAlī 148    . For similar observations in the heresiographical literature. and discussion above. Jaṣṣāṣ. Incidentally.131 A similar ruling—this time involving ʿUmar again—was applied to a man from Yemen but living in Medina. 536/1141). ed. ʿAlī ruled that the man should get the lesser punishment of lashing (ʿalayh al-ḥadd wa-yudraʾ ʿanh al-rajm).). which could be an echo of the idea that stoning was at some point not considered the ḥadd proper. But ʿAlī said that the death penalty was not due here. see ʿAbd al-Qāhir al-Baghdādī (d. When evidence of the act was produced and the man admitted to being married. the man had committed an act of zinā. 132                                                                   130 Ibid. is the “ḥadd punishment. 429/1037). objected to that characterization. 548/1153). 3:263-64. 253-54. The sources note that only the Khārijīs. all that is due. note 165.130 ʿAlī also applied the ḥudūd maxim to avoid sentencing a married man to death for committing a sex crime while in prison. Ibn alMalāḥimī (d. Accordingly. but was an exaggerated discretionary punishment (taʿzīr) that came to be thought of as the ḥadd punishment for adultery very early on. Qummī. Qaḍāyā. In this way. 131 132 Ibid. this is one place where ʿAlī contrasts stoning with the appropriate “ḥadd” punishment. as it was not Qurʾānic. ʿUmar sentenced him to death-by-stoning. 1991).” that is. the report notes that ʿAlī avoided imposing the more serious ḥadd punishment—the death penalty—and notes it as an application of the ḥudūd maxim (fa-udriʾ ʿanh al-ḥadd). ʿAlī did not view him as a married man who could satisfy his desires lawfully because he was not physically with his wife. which was in another country. note 90.. Wilferd Madelung and Martin McDermott (London: al-Hoda. Manāqib and other works). 248-49 (fa-julida jaldan wa-udriʾ ʿanh al-rajm) (citing Ibn Shahrāshūb. 485. So the man was flogged and the death penalty avoided. al-Milal waʾl-niḥal. ed. 105.. in year 40 or after. Muḥammad Muḥyī ʾl-Dīn ʿAbd al-Ḥamīd ([Cairo]: Maktabat Muḥammad ʿAlī Ṣubayḥ.) Though the death penalty was taken to be the typical punishment for male sodomy or adultery. e. n.for defamation. al-Farq bayn al-firaq. flogging.

saying that “an Imām may pardon a man who comes to him. Qummī.. 1990).135 and mitigating ḥadd punishments—as in the prison and traveling case—by imposing the lesser of two options for punishment or by devising rules of ascertaining lesser sanctions proportionate to diminished culpability. 12 (imposing ¾ of the ḥadd for a sex crime with a ½-manumitted slave).. ibid. 2009). he famously propounded an Islamic law “three-strikes” rule for repeat                                                                                                                                                                                                Ḥasan Fāʿūr (Beirut: Dār al-Maʿrifa. 69 (all cited and discussed in Hossein Modarressi.136 c.134 imposing ever-heightened standards of evidence to prove sex crimes. 107. the perpetrator should repent and perform the ḥajj pilgrimage walking).. 1971). ibid. ʿAlī announced several instances that require harsh sanctions. 135 136 134 E.g.g. 133 E. Josef van Ess (Beirut. 149    . and then repents”). confesses. ibid. spiritually rehabilitative punishments for keeping crimes private in exchange for concealing one’s crimes from the court and other public spaces. ed.. Accordingly.g. especially for violations of values otherwise not mentioned explicitly in the ḥudūd laws..Several other cases depict ʿAlī avoiding harsh punishments through various means: pardons through accepting or imputing repentance to the defendants. Ḥudūd Imposition: Reluctant Enforcement ʿAlī was not solely interested in ḥudūd avoidance. 103. For example.g. E..133 announcing lesser. but that if the matter is not brought to the authorities (the “Imām”). 76 (forgiving a man for pederasty. Qaḍāyā. pseudo-Nāshiʾ. Wiesbaden: In Kommission bei F. Tārīkhiyyāt: Majmūʿa-i maqālāt va taḥqīqāt-i tārīkhī (Niyū Jirsī: Ayālat-i Muttaḥida. Masāʾil al-imāma. 99 (ruling that the appropriate sanction for having sex with one’s mother was 100 lashes as harshly as possible to the bare skin. 105. that was his means of displaying fidelity to God’s law and upholding Islamic moral values by observing the criminal laws. 209 (noting that the Azāriqa sect of Khawārij rejected the stoning punishment on the basis that it had no basis in the Qurʾānic text and was not a matter of consensus of the earliest community [quoting the following from pseudo-Nāshiʾ: ankarū ʾl-rajm wa-lam yūjibū min al-sharāʾiʿ illā mā naṣṣa ʿalayh al-Qurʾān aw-naqalah firaq ahl al-ṣalāt kulluhum biʾl-ijmāʿ])). The same concerns that led him to avoid the harshest ḥudūd punishments led him to issue rulings insisting on harsh punishments for certain behaviors.. Steiner. E. and against queries that he was neglecting ḥudūd laws (a-tuʿaṭṭil ḥadd min ḥudūd Allāh?).

offenders: a repeat convict of fornication was death-eligible after the third offense. whether or not he is married (though an unmarried sex offender otherwise would typically be sentenced only to flogging). 100 (citing Kulaynī. idem. Faqīh. Ibn Bābawayh. Qāḍī Nuʿmān. 97 (noting that slaves. But in                                                                   137 Ibid..138 A rapist always receives the death penalty. Wasāʾil. cf. ibid. idem. filling the juristic treatises with instances in which punishments are due over and above those mentioned in the Qurʾān. they may not—ʿAlī held—do so brazenly. Ṭabarsī. Mustadrak [al-Wasāʾil]). 150    . because they are to receive half the punishment of free persons. when ʿAlī pardoned a man for pederasty. 100 (citing Kulaynī.139 Non-Muslims receive the full ḥadd sanction for defaming Muslims. Tahdhīb. ʿAlī appealed to the right of the Imām to pardon whom he pleases—which becomes his prerogative if the crime is established by the offender’s voluntary confession. Biḥār). while non-Muslims may freely drink wine in Muslim lands. al-Ḥurr al-ʿĀmilī. Wasāʾil al-Shīʿa). Majlisī. al-Ḥurr alʿĀmilī. Kāfī. Daʿāʾim..137 Those guilty of committing bestiality are to receive a punishment just shy of the ḥadd for zinā plus pay the value of the animal to its owner.141 In that case. Qāḍī Nuʿmān. Daʿāʾim. 262. Ṭūsī. Istibṣār... Wasāʾil al-Shīʿa. 99. 76 (a-tuʿaṭṭil ḥaddan min ḥudūd Allāh?). although they typically are not subject to the requirements of Islamic law. 138 Ibid. Another exception is wine-drinking in public.140 And the list goes on.. are death-eligible on the eighth offense). The more serious the moral offense—such as male sodomy and multiple-repeat offenses—the harsher the punishment. Concerns with fidelity and subservience to the divine law and the moral values it espouses undergirded the statements in the reports questioning whether ʿAlī meant to completely neglect the ḥudūd laws in his actual judgments of ḥudūd avoidance. the defendant himself asked ʿAlī incredulously whether he was suspending the criminal laws. Muqniʿ.. Kāfī. 141 140 Ibid.. 99 (citing variations in Kulaynī. See ibid. Kāfī. For example. al-Ḥurr al-ʿĀmilī. Ibid. 139 Ibid.

thinking that he was alleviating the latter’s concern. As it happens.other cases.. ʿAlī said that he had to impose the sanction as the woman had confessed four separate times and no other impediment was available for avoiding it. the idea that she was the only one who could care for the child). one community member— ʿAmr b. that her husband was not absent. then take care of him if there was no one else to do so. The woman came back multiple times thereafter. ʿAmr had taken away ʿAlī’s last appeal to mitigating circumstances (i. He asked about her circumstances to find some mitigating cause.. and that she was pregnant. where he was unable to do so.” Accordingly. then raise him until he reached a certain age. 80.142 ʿAlī started down his normal track of trying to avoid the punishment. ʿAlī sent her away. and each time she did so. Ḥurayth—volunteered to raise the child himself and announced that fact to ʿAlī. ʿAlī sent her away with another excuse: she should nurse the child for two years. He reluctantly announced that God had instructed his Prophet that “whoever neglects the ḥudūd laws had gone against and opposed Me: man ʿaṭṭala ḥaddan min ḥudūdī fa-qad ʿānadanī waḍāddanī. the sources depict him as imposing the ḥadd punishment reluctantly. proclaimed that he was following the dictates of “God[’s] covenant … with                                                                   142 Ibid. So he commanded all the people to gather for afternoon prayer on the outskirts of Kufa. telling her to wait until she had delivered the baby. 151    . and the woman informed him that she had committed the act while married. One episode has it that a woman came to him confessing adultery and requesting the associated penalty. The reality was quite to the contrary.e. Unwittingly. 85.

Musnad. al-Ḥurr alʿĀmilī. for [I swear] by God. For this trend in Sunnī law. Faqīh. Ibn Bābawayh. 85-87 (cited in Qummī. ʿAlī’s bark as a legislator or commentator on the law is worse than his bite as a judge. pseudo-ʿĀṣimī. Ibn Bābawayh. Maḥāsin. Tafsīr. Part III.. Curiously. Ibn Shahrāshūb. though the report introduces some doubt about just what happened by noting that there was no one there to witness it. Ṭūsī. Kāfī. Kulaynī. and other sources). Manāqib. Mustadrak al-Wasāʾil. Tahdhīb alaḥkām. 85-87 (citing variants in Barqī.Muḥammad (ʿahd). pointing to the moral values behind criminal legislation. Ṭabarsī. 80. until only he remained with his two sons. the harsh rules take a backseat to what appears to be a primacy placed on a greater interest and deeper concern—anxieties about applying those harsh punishments when not clearly warranted. See Qummī. But in ʿAlī’s judgments. Zayn al-Fatā. repentance to God in private is better than destroying oneself and throwing off His concealment [of you]!”143 This case notwithstanding. and he presumably carried it out along with his two sons. until the man had come back four times. Kulaynī. ʿAlī eventually announced to the people that this was one of the “claims of God (min ḥuqūq Allāh). A similar story is told of a man who confessed to adultery and came to ʿAlī asking for the associated punishment. ʿAlī is then said to have gathered the people again and admonished them not to publicize crimes better left private and unpunished: “whoever commits []a sin. Bajalī. then repent to God privately. Those three presumably imposed the ḥadd. He espouses the rules of harsh punishment in the books of Shīʿī law.” that had to be imposed. Kāfī. he dispersed the people. see below. Faqīh. His harsh statements of law but lenient judgments have the effect of emphasizing that the moral values underlying the criminal laws and their sanctions are binding if there is incontrovertible evidence of guilt without any mitigating factor. al-Ḥurr al-ʿĀmilī.C. Wasāʾil. Qaḍāyā. 152    . and other sources). but announced that people should repent privately for crimes that God has kept private. Wasāʾil al-Shīʿa.1-2. Yet they also manifest an outlook that regards that standard as so difficult for mere humans—even the likes of the all-knowing and                                                                   143 Ibid. ʿAlī similarly sent him away several times. which he [had] passed on to [him]” to enforce ḥudūd laws.

This approach places the emphasis on legal truth over factual truth and leads to a cautionary stance against ḥudūd imposition in all but the clearest of cases that have no mitigating factors. characterized by harsh legislation but lenient application. but also claim the moral high ground on two fronts. (Recall ʿAlī’s reluctance in the above cases mirrored by the Prophet’s reluctance in the Case of Māʿiz.infallible Prophet and Imāms—to meet. In Shīʿī and Sunnī law. this results in ḥadd avoidance. and observe the parallels between the case of the alleged rapist. Ḥudūd-avoidance seems to come from death-is-different jurisprudence that calls on jurists to preside over questions of life and death in a way that considers all possible doubts and ambiguities that may call into question the appropriateness of the death penalty. and that of the alleged murderer. only to require that the accused be dealt with flexibly. presided over by the Prophet. these records of ʿAlī’s criminal law judgments thus not only present him as an exemplar of justice. presided over by ʿAlī. 153    . that it is more important to defer the actual judgment to God.) In underscoring these tendencies. It is a jurisprudence of doubt that claims for the jurist wide jurisdiction over criminal law matters. usually one involving adultery. and expressed extreme moral anxiety at taking a life—the highest of values—without clear authority or divine sanction to do so. ʿAlī and Muḥammad have assumed the same position with the same orientation to criminal cases: both are exemplars of justice. and more often than not. The result: a juridical policy in which judges are to actively seek those doubts when faced with a death penalty case. They at once made fidelity to the law paramount by outlining the harsh treatment of those who would offend the moral values that God set out to promote.

11 (“What is 154    . the tendency toward ḥudūd avoidance—highlighted most in ʿAlī’s judgments—eventually generalizes beyond the ʿAlid context and beyond the death-is-different jurisprudence. This is evidenced in later legal developments that draw on those earlier contexts to give the ḥudūd maxim broader scope in Sunnī law and legal theory.” Representations 2 (1983): 1-25. See Peter Brown. Peter Brown has described this feature of education and literary writing in the late classical Christian context—noting his partial indebtedness for the observation to comparative parallels in the Islamic context as adduced by Ernest Gellner and others. To do that. Generalizing Death-is-Different: Jurists as Opposition to FairnessDisregarding Overcriminalization In the legal literature. The centerpiece of his argument is to define just what judicial acumen is. “The Saint as Exemplar in Late Antiquity. 2.145                                                                   144 Ibn al-Qayyim. 751/1350). 3 (fa-qad saʾalanī akhī ʿan al-ḥākim aw al-wālī yaḥkum biʾl-firāsa waʾl-qarāʾin allatī yaẓhar fīhā ʾl-ḥaqq waʾl-istidlāl biʾl-amārāt wa-lā yaqif maʿa mujarrad ẓawāhir al-bayyināt waʾl-iqrār …?). he focuses on the Prophet and ʿAlī as exemplars.3. It represents developed ideas concerning the role and scope of juristic authority over criminal law as it intersects with precisely the area with which the ḥudūd maxim is most concerned: shubha. A primary case in point is the treatment of criminal law by Ibn Qayyim alJawziyya (d. In brief. Ibn al-Qayyim emphatically answers “yes” to the question whether judges should rely on judicial acumen in legal rulings: they can and they should. Ṭuruq. 145 Notably. the illustrious Ḥanbalī jurist-scholar. The work focuses on the role of the judge. the discussion of exemplary portrayals with focus on these major figures is in line with a regular practice in the Late Antique/Early Islamic Near East. and was prompted by a single question: can a judge rule by his judicial acumen (firāsa). in his work of legal theory cum judicial manual—al-Ṭuruq al-ḥukmiyya fī ʾl-siyāsa al-sharʿiyya. particularly when the evidence is insufficient by itself to provide a clear decision?144 The entire treatise thus deals with doubt and the jurisprudence of doubt. or doubt.

Ibn al-Qayyim illustrates how jurists recount and universalize the theory of ḥudūd avoidance based on the death-is-different jurisprudence. ʿAlī is not mentioned per se. with ʿAlī as its chief proponent-exemplar. Lamb (New York. G. Ṭuruq.In the process. 67ff and 82ff quoting from the judgments of ʿAlī. The bulk of the remaining discussion draws on familiar Sunnī sources. tr. with pp.147 So ʿUmar avoided imposing the ḥadd.”) (citing Henri-Irenée Marrou. 155    . … [T]he balance towards seeing persons as classics had already been tipped by the intensely personal manner in which the culture of paideia was passed on from generation to generation. in A History of Education in the Ancient World. 148 Ibn al-Qayyim.146 In elaborating the meaning of judicial acumen. pp.” Ibn al-Qayyim references a case where ʿUmar declined to impose the ḥadd punishment on a woman accused of fornication at the advice of ʿAlī—who noted that the woman likely confessed to the crime only because she did not know it was illegal. Ibn al-Qayyim devotes a section to the ḥudūd maxim. and always being careful of both the moral imperatives of the law and the idea of judicial subservience. 1956). though in those cases. in particular. where ʿAlī is indeed advising ʿUmar toward lenity.”148                                                                                                                                                                                                 … truly peculiar about the late classical world is the overwhelming tendency to find what is exemplary in persons rather than in more general entities. it can also refer to any of the numerous cases presented in Qummī’s Qaḍāyā. Ibn al-Qayyim. 37-39 (two versions). After quoting the standard formula. but ʿAlī is ever at the center of the discussion. 217-26: describing the “Civilization of the Paideia”). “is the most subtle degree of judicial acumen (min daqīq alfirāsa). see above. advising ʿUmar. 34-97. “avoid criminal punishments in cases of doubt (idraʾū ʾl-ḥudūd biʾl-shubahāt). Ṭuruq. 147 This can refer to the case discussed above in which ʿUmar avoids punishing the mysteriously pregnant woman. 146 See. 96-101. He provides a particularly noteworthy treatment because he draws on both the early proto-Sunnī and proto-Shīʿī sources looking to the Prophet and ʿAlī as exemplars of justice. 82. approaching ḥudūd rulings. Other Companions are mentioned. “and that.” Ibn al-Qayyim commented.

149 About the case where the man was found with a bloody knife in his hand (from Chapter 1). Tirmidhī. Fāris Ḥassūn Karīm (Qum: Muʾassasat Amīr al-Muʾminīn. Ḥanbal (d. ed. according to Ḥanbalī law. See Ibn alQayyim. Ibn al-Qayyim accordingly declares that there is a “strong basis (wajh qawī)” for ʿAlī’s avoidance of the death penalty in this case. That is. 241/855). 89. Abī Ṭālib. 150 151 152 153 Ibn al-Qayyim. Aḥmad b. Ibn al-Qayyim. compiled by Muḥsin al-Amīn al-ʿĀmilī.”151 Some canonical ḥadīth sources recount that the Prophet stoned the perpetrator. This is because. The two published stand-alone editions are: Qummī. Qaḍāyā Amīr al-Muʾminīn ʿAlī b. Ibid.He proceeds with quotations from the works containing ʿAlī’s judgments recounted above (otherwise common only in Shīʿī sources) along with his own commentary that explains and sometimes qualifies the scope of the ḥudūd avoidance allowed. The story is also quoted in Nasāʾī. 84. 86. 275/889). Ṭuruq. 2000). there is a difference of opinion over what happened and. and idem. so far as I can tell. ʿAjāʾib aḥkām Amīr al-Muʾminīn. refer to the work Qaḍāyā ʿAlī (which also goes by the other names) of Ibrāhīm al-Qummī of the mid-3rd/9th century.152 while others say that he did not. 1382/[2003]). Ibn al-Qayyim comments that it is valid for a judge to let the real offender off if he has secured the agreement of the victim’s family. Abū Dāwūd (d. Ibid.                                                                   149 That is. That is.. he quotes ʿAjāʾib al-qaḍāʾ. as such. Bukhārī (d.150 Commenting on the similar case of the rape victim (recounted above). Ṭuruq. The quotations match the first narration of the 2003 critical edition of Fāris Ḥassūn Karīm. 256/870). Fāris Ḥassūn Karīm ([Qum?]: Markaz al-Ghadīr liʾl-Dirāsāt al-Islāmiyya. ed.153 And a main collection excludes the ḥadīth altogether. Ṭuruq. the right of retaliation can only be voided by the family’s pardon. 86. This case comes from Sunnī sources and has the Prophet rather than ʿAlī presiding. Probably assuming that ʿAlī pursued this course. it is regarded as “one of the problematic ḥadīths. Ibn alQayyim again highlights the judicial acumen apparent in the idea that the Prophet avoided imposing the ḥadd punishment. Aqḍiyat ʿAlī and Qaḍāyā ʿAlī—all of which. (min mushkilāt al-aḥādīth). 88-89. 238 (paraphrased). 156    .

Moreover. and this is not one of them. 157    . All cases in which the Prophet purportedly ordered stoning are known and limited to five cases. the Yemeni woman involving the house servant (ʿasīf). Ibid. Ibn alQayyim seems to be saying. presided over by ʿAlī). For a longer list. 3:256-58. the Prophet must have been operating on the knowledge that the perpetrator had repented. he says. This policy. helps us resolve debates over what happened historically. much more so in Sunnī and Shīʿī regard alike)—is guided by the policy of avoiding ḥudūd punishments. Ibn al-Qayyim concludes that the person reporting the story was mistaken. 86. and the two Jews who came to the Prophet requesting punishment for adultery). the narrator likely added the bit about stoning based on the custom of his own time and/or his confusion about whether the Prophet accepted the initial request of the Companions to stone the man. there is nothing in that ruling that                                                                   154 Ibn al-Qayyim notes that the ḥadīth’s chain (isnād) met the criteria of authenticity for Muslim. 87. at least in death cases.. Ibid. just as in the case of Māʿiz.. see Jaṣṣāṣ. 264 (listing ten reports and one or two additional instances validating the practice: the five above plus (1) the “ḥadīth of Jābir” reporting that the Prophet stoned an unnamed man and (2) a report of the stoning of Shurāḥa alHamadāniyya. the Ghāmidī woman. 2:107. Ṭuruq. In this case.likely because of this confusion.154 Ibn al-Qayyim is fairly certain that the Prophet did not stone the perpetrator here. 156 155 Ibn al-Qayyim.155 Instead. which—in the sounder of two Ḥanbalī opinions—would remove ḥadd liability.156 Most telling about this discussion for our purposes concerns a factor that Ibn alQayyim does not mention explicitly. but only lists five: Māʿiz. but alludes to in recounting this story in the section on the ḥudūd maxim as an example of superior judicial acumen: the Prophet— certainly regarded as possessing the superior judicial acumen displayed by ʿAlī in the prior case (in fact. He may even have conflated two separate stories—this one and one of the cases in which the reports note that the Prophet actually did sentence someone to stoning. Aḥkām al-Qurʾān. but was likely excluded because the content (matn) was so questionable (fīh iḍṭirāb). 87 (he says that there were six individuals.

Iʿlām. It is not that the Prophet and his Companions always required absolute certainty in the form of witness testimony or confession to prove a criminal violation.158 Even after a judge has sentenced an accused woman to stoning on the basis of quadruple testimony. Iʿlām. Ṭuruq. 159 160 As noted in Chapter 1.”159 Thus. Ibn al-Qayyim sees the ḥudūd maxim (albeit not in standard form) as a central maxim of criminal law. Importantly. To be sure. should be followed in the future. for Ibn al-Qayyim. 1:104 (al-ʿuqūbāt tudraʾ biʾl-shubahāt).160 For him.contradicts any basic Islamic legal principles (uṣūl al-sharʿ). those forms of evidence were preferred. But the early authorities had held that circumstantial evidence could warrant ḥadd liability.157 To the contrary. for example. he elsewhere quotes the maxim in the form that “punishments [rather than the fixed punishments that form ḥudūd laws] are to be avoided in cases of doubt or ambiguity. such as pregnancy as indicative of zinā or the scent of alcohol as evidence of wine-drinking. the maxim then trumps or resolves legal-historical debates by providing a rule-of-thumb that we can be fairly sure was followed in the past and. Ibn al-Qayyim.. Yet. as precedent. ḥadd liability is removed.” Ibn alQayyim. he discusses theft as another area of ḥudūd avoidance in cases of famine. “[The judge then] is to avoid the ḥadd punishment [in such scenarios] even if he has ruled that it otherwise applies. no final sanction—whether death (as in the adultery case) or corporal punishment (as in the wine-drinking case)—is due until and unless it can be established that there are no mitigating doubts. 158 Elsewhere. 89 (fa-inna ʾl-ḥadd yudraʾ ʿanh wa-law ḥakama bih). 158    . if it becomes apparent that she is a virgin or that the witnesses are untrustworthy. the law and the superior judicial acumen                                                                   157 Ibid. 3:15 (maʿa ḍarūrat al-muḥtāj). See Ibn alQayyim. doubt functions as the determinative factor in criminal sentencing even beyond the death context. 88.

159    165 . Accordingly. necessity (ḍarūra).required in applying the law obligate ḥudūd-avoidance in certain situations like the ones enumerated here. See Ibn alQayyim. they apply the maxim to all types of criminal law: crimes that warrant the death penalty (adultery. 11:5910-16 (presenting and adopting the former opinion). see Chapter 2. and only a married person convicted of male sodomy is thus liable to be executed (though a minority opinion regards any act of male sodomy as a separate crime and holds that the person or couple found guilty of it are liable for the death penalty). 164 The Ẓāhirīs. Tajrīd. The dominant Shāfiʿī opinion regards acts of male sodomy acts as zinā rather than as separate crimes. 2:1069. note 131 and accompanying text (Appendix. 24). rape. as do Akhbārī Shīʿīs. 2002?). In Shīʿī law. al-Wasīṭ fī ʾl-madhhab. ed. murder. Aḥmad Maḥmūd Ibrāhīm and Muḥammad Muḥammad Tāmir ([Cairo?]: Dār al-Salām.164 As detailed in the next chapter. notes 106-107 and accompanying text. al-Kāfī fī fiqh ahl al-Madīna al-Mālikī (Beirut: Dār alKutub al-ʿIlmiyya.. male sodomy)165 and crimes that do not                                                                   161 Ibid. The other mainstream Sunnī and Shīʿī schools do as well. and Chapter 5. 440-41. which is typically equated with marriage but encompasses much more. And one of the two Ḥanafī opinions (that of Abū Ḥanīfa) maintains the stance that male sodomy is not a ḥadd crime while another opinion (that of Abū Yūsuf and Shaybānī) holds that it is. See Ibn ʿAbd al-Barr. Mālikīs categorize male—but not female— sodomy under the rubric of zinā. on the other hand. he criticizes the other Sunnī schools—Ḥanafīs.C. reject the maxim. Ṭuruq. Section II.162 Ibn al-Qayyim places restrictions on the operation of the ḥudūd maxim. male sodomy is not always categorized as an independent ḥadd crime warranting death.161 Like other Ḥanbalīs (some more so than others). 5:17 (presenting both opinions.) In addition. (Thus. and the public interest (maṣlaḥa). Ibn Nujaym. 13-15. 162 163 See discussion in Chapter 5. See Abū Ḥāmid al-Ghazālī. For further discussion. 1:314-15. Case no. See Qudūrī. Mālikīs and Shāfiʿīs—for applying the maxim expansively at the first sign of potential doubt and without a basis in text or precedent. a married man who is imprisoned will not be deemed to meet the conditions for iḥṣān. and adopting the latter).163 But the relevant point here is that he regards it as central to criminal jurisprudence and has extended ḥudūd avoidance to death and non-death cases alike. iḥṣān requires that a husband and wife be both married and available to one another. 3:11. For discussions. He holds that the issue of when a judge may recognize ḥaddaverting doubts either follows prior precedent or is triggered by a judge’s discretion concerning factors like repentance (tawba). as outlined in later legal literature. 1073. as demonstrated in ʿAlī’s case above. al-Baḥr al-rāʾiq. see Chapter 1. for example. 1997). For the sex crimes listed here. a condition is often iḥṣān.

See. the preceding sets of cases are mutually reinforcing.(theft.. 22 (1953): 3-23. Ḥadd-avoidance. * * * Ibn al-Qayyim’s work was of particular interest here because it represents developed ideas concerning the role and scope of juristic authority in criminal law in what is regarded as the most “conservative” school of Sunnī law. which—for the reasons noted above—happened to have been recorded in the historical reports of judgments rendered by the Prophet and ʿAlī as exemplars. even this most conservative school of Ḥanbalism. his teacher Ibn Taymiyya). wine-drinking. where one would expect conservative Sunnī law to be anti-ḥudūd maxim and anti-Shīʿī (as was. and it extends beyond death according to all schools that accept the ḥudūd maxim in some form. it seems that a doctrine of ḥudūd avoidance favors willfully turning a blind eye to and even validating indiscretions. * * * As constructed by the jurists and settled in this compromise. defamation. but he also extends the principle of ḥudūd avoidance beyond the death context.g. That is. standing at the center of the criminal law jurisprudence of both.” George Washington Law Review. Not only does he include records of ʿAlī’s judgments from the Shīʿī community in his examples. e. Ibn al-Qayyim surprises. Majid Khadduri.166 but draws widely on interpretive schemes of all schools of Islamic law. He casts his net wide in order to home in on the best models of judicial acumen. One                                                                   166 The school’s so-called conservatism relates to the limits its adherents attempt to place on the exercise of juridical or judicial discretion. is thus a central marker of high-level judicial acumen. 160    . “Nature and Sources of Islamic Law. for example. At first blush. and a host of other less clearly specified crimes carrying discretionary penalties). 18.

reason offered was to accommodate social hierarchies. As intimated in the ʿAlid judgments. These conditions suggest that the jurists are concerned with the public and political realms. communicate a general rule of mandatory ḥudūd imposition. distinguishing between the first two categories on that basis. the rule of law. Thus. the ḥudūd maxim. On a closer look. explicitly. The aim was multivalent. These sayings emphatically affirm an orientation toward ḥudūd imposition once a criminal accusation is brought before the court and proved. they seem not to have been so for the jurists. these traditions were quite far from being in favor of privileging the upper class or any other community member with getting off scot-free from crimes. implicitly. Rather. More generally. taking courts to be the epitome of a public forum. A Mixed Bag: Public Virtue. and ʿAlī are as intent on avoiding ḥudūd imposition for the low-class Yemeni woman and for a common thief as they are for anyone else. and the modified aqīlū saying (with the ḥudūd exception). the Prophet. at least. initially. and issues of public morality are all implicated in plain view. the authority of the ruler. ʿUmar. a third line of cases draws a line between private and public. What does this mean for ḥudūd jurisprudence? C. including both social- 161    . this line encouraged people to conceal vice so as not to raise the question of ḥudūd enforcement in the public space. But if these were the motivating forces of the political elite in the early period. in the accounts analyzed thus far. Private Vice In addition to the competing tendencies toward ḥudūd enforcement and ḥudūd avoidance. There. the legal literature depicts the Prophet as at pains to argue against intercession and special treatment on the basis of status in the Case of the Makhzūmī Thief.

see Qurʾān. so pardon and overlook [the faults of others]! Do you not wish for God to forgive you? For God is most forgiving.”167 The sources report the Prophet and other early authorities emphasizing this sentiment over and over again. For the Qurʾānic verses. surely it is improper for the imām. In fact. 24:27 (on entering the home). to do anything but impose [the ḥadd]. he also noted that the Prophet gave the following advice. 4:24 (noting that he deems this ḥadīth authentic even though Bukhārī and Muslim did not include it in their collections). This was an expression of an early Islamic notion of privacy. 100. there were other dicta at play. 380.institutional and spiritual-moral concerns. encouraging people not to bring ḥudūd matters to the courts: Do not be helpers to Satan on behalf of your brother. 168 See Cook. 49:12 (prohibiting spying: tajassus). 162    . it was so oft-repeated that it can easily be said to have been a widely diffused idea in their time—over and above the hierarchical aqīlū sentiment—that people should conceal their own faults and the faults of others. and encouraging Muslims to cover the faults of their wrongdoing brethren. and loves pardon. 1. Even as Ibn Masʿūd observed that the law required him to impose the sanction for drunkenness. Privatizing Vice To return to the Case of the Drunken Orphan. Some examples will illustrate the point. aside from the ruling of ḥadd liability. when a ḥadd crime is raised to him. regulating the entry and exit of homes. surely God is [quick to] pardon. which appeared first in Qurʾānic verses and prophetic ḥadīths prohibiting spying. 80-82.168                                                                   167 Al-Ḥākim al-Naysābūrī. most merciful. The result for criminal law theory was to limit ḥadd liability to public offenses and thus to turn publicity itself into an element of criminal liability. 2:189. Commanding Right. Mustadrak.

I have joined the two ḥadīths as they seem to refer to the same incident with different details—both told through different chains by ʿIkrima.”170 In another version.”173 He was suggesting that he would do the same for anyone he arrested drinking or stealing. 100. Abū Bakr reportedly said that if he were arrested for winedrinking or theft. Along with Ibn ʿAbbās and Zubayr. he would “hope that God would overlook [his crime] (yasturah). Ibid.. Commanding Right. If it were you. 81. a Companion “who settled in Egypt and was Muʿāwiya’s governor there in 44-7/665-7:”174                                                                   169 For additional examples. sometimes involving competing interests that effect whether to divulge the wrongdoing. 170 171 172 Ibn Abī Shayba. 163    . And a series of traditions announced that there was spiritual reward in concealing the faults of others (satr). 58/677-8). In one narration. 173 174 Ibid. “You have no compassion. “I am overlooking his crime so that God will overlook mine. While a group was traveling and passing by the valley of Muzdalifa (a stopping-point near Minā and Mecca on the ḥajj pilgrimage). 9:282-83 (astur ʿalayh laʿalla Allāh an yastur ʿalayya). la-sarraka an yukhallā sabīluk).. a thief came by and stole a leather bag belonging to ʿAmmār. Commanding Right. 9:283 (literally: “cover” his crime (la-aḥbabtu an yasturah Allāh)). ʿAmmār said. Ibid. They reclaimed the bag but let the thief go. (lā umma lak! ammā law kunta anta.171 Ibn ʿAbbās retorted. 9:282 (biʾsa-mā ṣanaʿtum ḥīna khallaytum sabīlah). Muṣannaf. Cook. ʿĀmir al-Juhanī (d. you would be happy to be released!”172 In a similar vein.It was also an expression of a value that jurists elaborated considerably to the point that it became central in matters of criminal law. 80-82. see Cook. The concealment impetus is well-recounted in the following anecdote about ʿUqba b. ʿIkrima tells the story and criticizes the others for releasing the thief. that by doing so.169 Another incident involves a case of theft in the presence of Ibn ʿAbbās and other Companions. ʿAmmār pursued the thief until they cornered him against a wall.

175 With such anecdotes. Qummī.His secretary. The Prophet instructs: “Overlook (taʿāfaw) [wrongdoings] that occur amongst you [privately]. 4885.389. 8:331. 6211. but to no effect. 18. 164  177   . 8:70. ʿUqba once more told him not to. note 143 and accompanying text. but rather to counsel and threaten them (verbally). for any ḥadd matter that reaches me [for adjudication] requires imposition of the punishment. So do not expose that which is hidden from you. Abū Dāwūd. 80ff and passim.                                                                   175 Ibid. explained to him that he had neighbours who drank wine. above. 4886. 4:424. no.”176 And ʿAlī expressed similar sentiments. almost as if to avoid prosecution. ʿUqba told him not to do this. cf. 10:229.. 8156. it is as though he had restored a buried baby girl (mawʾūda) to life from her tomb. no. 17. 85-87. Sunan. so he again proposed to call the police. no. and proposed to summon the police (shuraṭ) to arrest them. repentance to God in private is better than destroying oneself and throwing off His concealment [of you]!”177 In so saying. see ibid. Sunan. For people [inevitably] have shortcomings. For more cases that involve criminal law. (citations omitted) (noting that the traditions makes reference to the pre-Islamic practice of female infanticide (waʾd). Mustadrak. Dukhayn al-Ḥajrī. Recall his exasperated plea to the community after reluctantly deciding that punishment was due in the case of the woman who had confessed her own sexual misconduct: “[To] whomever commits … a sin. al-Ḥākim al-Naysābūrī. 4376 (with al-ḥudūd inserted between taʿāfaw and fīmā). Ṭabarānī. jurists of the later periods encouraged community members to be discreet with criminal offenses. like the aqīlū saying. nos. 176 ʿAbd al-Razzāq. They frequently expressed it through another maxim-cum-ḥadīth that. he was echoing his instructions to Ashtar when he sent him to govern Egypt: Those people farthest from you and the most despicable of them are the ones most intent on exposing the shortcomings of others. He did so. 80. and quoted a tradition he had heard from the Prophet: “Whoever keeps hidden what would disgrace a believer (man satara muʾminan). no. Muṣannaf. Nasā’ī. 4:133. before they are brought [to my attention]. 6:210. Discussions on privacy and concealment of faults come in the context of an exhaustive survey of the duty to command right and forbid wrong in Islamic thought. no. al-Muʿjam al-awsaṭ. repent to God privately! For [I swear] by God. Qaḍāyā. See also Bayhaqī.937 (Arabic text: taʿāfaw fīmā baynakum qabla an taʾtūnī fa-mā balaghanī min ḥadd fa-qad wajaba). cautioned people to conceal faults. and the ruler is the most appropriate person to cover them (al-wālī aḥaqq man satarahā).

And even once they did. And do not be quick to believe the backbiting informant [who tells you about people’s faults]. as expressed through earlier precedents. this source is of dubious provenance. That the Prophet rebuked the community for carrying out the sentence that he reportedly imposed not only indicates an orientation to avoidance through allowing repentance at any stage.” they created a private sphere as distinct from a public one in areas of criminal law.178 By emphasizing personal culpability and concealment. and avoid ḥudūd sanctions in cases of doubts or ambiguities: wa-ʾdraʾ al-ḥudūd biʾlshubahāt.”). Repentance was always an option so long as offenders did not publicize their crimes. Punishment. 53. for [such] informants are surely treacherous.179                                                                   178 Al-Sharīf al-Raḍī. See Ibn Shuʿba. Tuḥaf al-ʿuqūl. jurists were attempting to stress the spiritual-moral element of ḥudūd violations on the individual and private levels. 165    . 126-49.and guard [the people’s] privacy to the extent possible (wa-ʾstur al-ʿawra mā ʾstaṭaʿt). and God will guard that which you wish kept private from your subjects. there was a willingness to entertain claims or even slight indications of repentance after sentencing. The Case of Māʿiz is typical of situations where individuals seem unaware of the full contours of the law but demand punishment for violating it as a means of spiritual purification. Nahj. The version by Ibn Shuʿba also includes the ḥudūd maxim— though as noted in Chapter 1. Theirs was an institutional concern with interpreting ḥudūd laws out of fidelity to the text of the law against law-disregarding tendencies and pressures from the political elite. but it also emphasizes the role of the juristic interpretations of the law rather than individual perceptions of it. even if they resemble [sincere] advisors. letter no. 128 (“Accept excuses. 248 (noting that the attitudes and juristic regulations governed both ḥudūd and discretionary laws (taʿzīr) typically thought of as being in the exclusive purview of the state). Out of conviction that “the law had to be protected from excessive and arbitrary uses of coercive force by the repressive state apparatus. Justice. p. 179 See Lange. … Overlook anything that is not [already] apparent to you.

the two tendencies toward ḥudūd imposition and ḥudūd avoidance converged in the taʿāfaw and satr policies: overlook and conceal faults amongst yourselves. On the other hand.2. The aqīlū saying and the taʿāfaw saying mirror each other in terms of general import. they encouraged people to overlook each other’s faults and misdemeanors without reference to status hierarchies while matters remained between private parties. both typically appearing together in the ḥadīth literature under a general heading of an exhortation to cover others’ faults (satr). which had shades of privileging those of high status. but also in an attempt to mediate and mitigate state involvement in criminal law on                                                                   180 Unlike the aqīlū saying. They could also use the satr tradition to emphasize individual aspects of morality. In some respects. but once the matter is brought to court and the crime established. note 60 and accompanying text. Delineating Public The advice to overlook or conceal crimes as expressed in the taʿāfaw and satr traditions cut both ways. it mandated imposition of ḥudūd sanctions across the board when wrongdoing traversed beyond the private sphere. the statements presented more egalitarian versions of the aqīlū saying and were thus more acceptable to juristic sensibilities in criminal law. this saying was egalitarian in import. which probably existed side-by-side) to capture the egalitarian spirit of the Qurʾān that had been neglected in their time. circulation. and has a singularly Ḥijāzī chain. opportunities for ḥudūd avoidance diminish and imposition becomes mandatory. Like the aqīlū saying. In appealing to these directives. the taʿāfaw saying appears only in Abū Dāwūd and Nasā’ī. and usage. 166    .180 The jurists could thus appeal to the taʿāfaw maxim (rather than the aqīlū saying. See Chapter 1. thereby avoiding ḥudūd sanctions. in part on claims of a moral theory of ḥudūd laws. encouraging private repentance between the individual and God. jurists were attempting to balance between the imposition and aversion tendencies. the taʿāfaw maxim was an announcement that a rule of mandatory ḥudūd sentencing applied to any ḥadd violation brought to the court. so long as it was proved. On the one hand.

many scholars equate ḥaqq with ḥukm.g. Mottahedeh.. see Eds. 1981). 1419/[1998]). Baber Johansen. The matter was far from simple. ḥaqq) has a sense of expectations. To that end. 1950/3. Majlis nos. Wahba al-Zuḥaylī.” meaning any right or interest that one person or entity can claim against another).g.. legal obligations). 3:551. in this case. al-Mawsūʿa al-fiqhiyya. 134. as the debtor. 167    . they elaborated the division between public and private through a language of “God’s rights” versus “private rights” that accommodated both moral-spiritual concerns and social-political realities surrounding criminal law. 1:169 (defining ḥaqq as an “entitlement.. Ms. “Ḥuqūq Allāh and Ḥuqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime. mandatory. M. Jurists initially contrasted a conception of ḥudūd laws as “God’s rights” (ḥuqūq Allāh) with other laws. or claims due to say. “ḥaqq” (Kuwait: Wizārat al-Awqāf waʾl-Shuʾūn al-Islāmiyya. note 9 and accompanying text. Muwāfaqāt. al-Baḥr al-rāʾiq. Risāla fī ʾl-farq bayn al-ḥaqq waʾl-ḥukm. entitlements. E. a lender. see also al-Hādī al-Ṭihrānī.n. ed. 1363/[1943-4]). 36-37 note 1 (Damascus: Maṭbaʿat Jāmiʿat Dimashq.n. which generally viewed ḥuqūq as legal duties.” EI2. art. “Ḥuḳūḳ.. Ernest Gellner. Ḥasan al-Mudarris al-Iṣfahānī. art. which can mean a legal ruling of obligation. 118). 182 See above. pl. Introduction to Shīʿī Law. Muḥammad Bāqir al-Ṣadr. 2:253-55 (specifically equating ḥuqūq Allāh with ḥudūd laws as fixed. ḥaqq] is figurative).g. 2753/5 (listed in Modarressi.. Other scholars clarify that the ḥaqq is not the ḥukm itself. see Muḥammad Taqī b. of humans to follow divine law. 1329/[1911-2]). Jurists of the first three centuries understood these concepts in theological terms. (Paris: Editions du Centre national de la recherche scientifique. E. Ibn Nujaym. Abdallah Hammoudi. Shāṭibī. For further discussion of ḥuqūq Allāh and ḥuqūq al-ʿibād. 2003)). E. from the one obliged to satisfy an obligation. of ḥaḳḳ. Risāla fī ʾl-farq bayn al-ḥaqq waʾl-ḥukm. in his Bulghat al-faqīh ([Tehran?]: s. Hoexter. in Rasāʾil al-taqawiyya fī ʾl-masāʾil al-fiqhiyya ([Tehran: s. 1987). but rather the subject of the ḥukm (maḥkūm bih or maḥkūm fīh). 16 (generally equating ḥaqq with ḥukm). al-Wasīṭ fī uṣūl al-fiqh al-islāmī. Anver Emon. individuals who fulfill their duties of worship have a corresponding right not to be                                                                   181 Ḥuqūq (s. 1:161-62 (same) (English trans.” Jerusalem Studies in Arabic and Islam 19 (1995): 133.]. 32591. Qarāfī. Risāla fī ʾl-farq bayn al-ḥaqq waʾl-ḥukm. Baḥr alʿUlūm.” in Islam et politique au Maghreb. Furūq. 3 (2006). 6:148 (similar: ḥaqq as mā yastaḥiqquh al-rajul).. Accordingly. deemed “individual (or human) rights” (ḥuqūq al-nās).181 That is. as we have seen in the “ḥuqūq tradition” that gave form to the jurists’ concern with judicial subservience. and Jean-Claude Vatin. “Sacred and Religious Elements in Hanafite Law—Function and Limits of the Absolute Character of Government Authority. Durūs fī ʿilm al-uṣūl (Qom: Majmaʿ al-Fikr al-Islāmī. Lessons in Islamic Jurisprudence (Oxford: Oneworld. because a ḥukm is actually the result of a divine command. 1965) (explaining that. 283.authoritative grounds. the use of ḥukm to mean the resulting ruling [wujūb. “Ḥuqūq Allāh and Ḥuqūq al-ʿIbād as Reflected in the Waqf Institution. vol.” Journal of Islamic Law and Society 13. jurists devoted entire treatises to detailing the distinctions between ḥaqq and ḥukm. which confers or creates a claim.182 the sentiment was that God has a right to be worshipped.

See Hoexter. Bināya. ed. ed. ʿAlī al-Ḥaskafī. Abū Yaʿlā. Johansen. Ḥuqūq Allāh. see Māwardī. 2007). at least. Ḥudūd crimes violate “God’s rights. cf. see Hina Azam. see Chapter 4.g. In this vein. al-Aḥkām al-sulṭāniyya. 182232 (arguing that ḥuqūq Allāh reflect an early “theocentric” conception of coerced zinā as a moral transgression that contrasted with a later conception of a “propriety ethics”). 1990). 184 For discussions of individual and government duties with respect to criminal law. is the theological notion of ḥudūd laws as moral obligation.183 As it concerns the political authorities. This. 1:425. Ḥamza Abū Fāris (Beirut: Dār al-Gharb al-Islāmī. Wansharīsī. as the first of ten requirements that the executive must uphold). 27 (listing ḥudūd laws under the category of preservation of religious or moral order (dīn). 671. Hidāya (Cairo: Muḥammad ʿAlī Ṣubayḥ. 6:190. E. ʿUddat al-burūq fī jamʿ mā fī ʾl-madhhab min al-jumūʿ waʾl-furūq.” they argued.. Sacred and Contingent. 281. n. 302 (arguing that Ḥanafīs established the ḥuqūq Allāh-ḥuqūq al-ʿibād distinction to account for “political justice in the name of God” and to alleviate tensions between the “private and individualistic character of Hanafite law” and “the public interest”). 14:400. this notion allowed the jurists to advance a conception of ḥudūd that requires individuals and political authorities alike to obey and implement ḥudūd laws as obligatory acts of worship. For alternative views. Tabyīn. individuals are to avoid committing ḥudūd offenses. “Natural Rights Regime. Only in this way would Muslim societies give shape to the moral order that God legislated through the divine law.”). Marghīnānī. and political authorities are obliged to punish those who commit them. 2:381. jurists elaborated a more sophisticated notion in which they took the “God’s rights”/“individual rights” dichotomy to refer to the public-versus-private nature of the interest offended by commission of a crime. For further discussion of both. 250 (including enforcement of ḥudūd laws in a short list of ten public duties that the executive authority of the state must fulfill). Zaylaʿī.punished.185                                                                   183 Several scholars observe that ḥudūd impositions are obligatory because they fall within the scope of ḥuqūq Allāh. ʿĀdil Aḥmad ʿAbd alMawjūd and ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya. 1966). duties.184 Over time. alAḥkām al-sulṭāniyya.d. in the sense of offending against public morality.). Emon. they concluded that ḥudūd laws represent “God’s rights” in the sense that they are rules of obligation legislated by God for which obedience is due. 19 (“Ḥuqūq Allāh refers to the rights of the Islamic community and religion and their claims upon the individual. and public commitments through natural law 168    . 3:539. al-Durr almukhtār (Cairo. 1998). ʿAynī. Radd al-muḥtār ʿalā ʾl-Durr al-mukhtār. 185 See the sources listed above in note 183 (which often reflect both theological and legal notions of ḥuqūq Allāh). Sexual Violence in Mālikī Legal Ideology: From Discursive Foundations to Classical Articulation (unpublished PhD dissertation.” 325-91 (positing that Muslim jurists invented the doctrine of ḥuqūq Allāh as an interpretive mechanism used to create and distribute rights. ʿAlāʾ al-Dīn Muḥammad b. That is. Ibn ʿĀbidīn. Duke University.

Sexual misconduct is a good example. Rules against sex crimes helped preserve ties of lineage and honor—which the sources reveal to have been extremely important in medieval Arab societies. And the laws against theft. highway robbery and the like promote the sanctity of private property. lineage. 1:269-70 (citing the ḥuqūq tradition). 186 See above. On this view. a violation of the                                                                                                                                                                                                 reasoning to justify rules that had no basis in the Qurʾān or Sunna).Recall that Dāwūd al-Ẓāhirī and other jurists had reduced Islamic law to five core public values that they maintain its rules are intended to promote: the preservation of life. e. note 17 and accompanying text. the laws of retaliation help preserve life by limiting opportunities for vigilante bloodshed and blood feuds of the type that occurred in the pre-Islamic period. in which case it should be punished absolutely in order to vindicate the claims of another individual—than as an offense against the notion of the inadvisability of open infidelity in a system where marriage is the primary way to render sexual relations licit—i. they simply added onto it. Prohibitions on intoxicants helped preserve the sanity or intellect (also here: dignity) of individuals and public space. Apostasy laws help maintain Islamic religious identity. jurists treated adultery less as an offense against the faithful spouse—i..g. That their rulings espoused a developed reading is not to say that later jurists dropped the earlier theological notion. Qarāfī.. Once it reached the courts. at a time when conversion entailed a change in political loyalty. See. sanity (or intellect). 169    . they also infringe on the sense of security and preservation of Islamic law’s five core values..e. religion. Furūq. a violation of a private interest.186 With these interests in mind. jurists convey a sense that ḥudūd crimes go far beyond offenses against individual victims. They mapped these values onto criminal law rules as the prime example and method of promoting these values.e. and property (listed in order of importance). fraud.

. disallowing verdicts based on judicial notice. 3:341-42 (arguing that the law encourages zinā to be covered [kept private] since the existence of four witnesses to the act is rare [if not impossible]). Constitutional Law with the Inherent Right of Privacy in Islamic Jurisprudence. For a useful discussion of how privacy laws played out in sodomy cases. see Alshech. Crime and Punishment. Commanding Right. Hidāya. 170    190 . 9:276. Sarāʾir. and the Death of Morals-Based Legislation: Comparing U. for “whoever publicizes or makes known his sexual transgression incurs [eligibility for] the ḥadd punishment”). 189 E. Some also determined that judges may only impose punishment with non-coerced.187 They instituted a host of additional evidentiary safeguards as well.. jurists made ḥudūd crimes like adultery punishable only when they were so                                                                   187 We earlier discussed some of the heightened procedures to prove zinā offenses. 1990).g.188 Moreover.189 In the process. uniform testimony as to the details of the time. Ibn Idrīs al-Ḥillī. The gravity of the crime and its high stakes still made jurists tread cautiously. Abū Ibrāhīm Ismāʿīl b. Falsafat altashrīʿ. On privacy doctrines in Islamic law. multiple. Privacy. Cook. See. 558 (2003)). 188 E. and limiting the use of circumstantial evidence. 80-82. through combining doubt jurisprudence with a robust privacy doctrine. 4:432 (noting exceptions to the Sunnī bar on judicial determinations by private knowledge for offenses against ḥuqūq Allāh). Maḥmaṣānī.S. Zaylaʿī. For basic overviews of criminal procedure. that is.” 291-332. 4:129. “Penumbras.190 In other words. Bājūrī. Sarakhsī. Ibn Bābawayh. see Peters.. public criminal acts. as reflected in their narrow construction of ḥudūd offenses and the heightened procedures required to secure a conviction. with comparison to recent change in American law announced by the Supreme Court in Lawrence v. 9:43-106.S. Ḥusayn ʿAbd al-Ḥamīd Nīl (Beirut: Dār al-Kutub al-ʿIlmiyya. including rules restricting the acceptance of confessions. in line with the taʿāfaw and satr traditions. sworn confessions or testimony from four witnesses to the act of penetration. Mukhtaṣar. 325-76. 23: 19.” Fordham International Law Journal 27 (2003):370 (describing privacy laws that barred the Muslim state from pursuing and prosecuting non-public sex crimes. see Seema Saifee. ed. 539 U. 3:537. Marghīnānī. ed. Yaḥyā al-Muzanī. Hidāya.g. 1993). Mabsūṭ. Texas. Ḥāshiya. “Private Domestic Sphere. which triggered the cautious ḥudūd jurisprudence of doubt when there was no clear victim.g. Jurists further interpreted these texts to severely circumscribe means of valid prosecution in other ways. ʿAlī Aṣghar Murwārīd (Beirut: Dār al-Turāth and al-Dār al-Islāmiyya. e. 384 (arguing that anyone who commits zinā or a related crime should keep it private and repent privately. 8-19. they constructed an elaborate law of privacy designed to prevent the political authorities from prosecuting anything but brazen.. and place of the act. manner. Some limited the definition of fornication to the literal terms of a sex act between a man and a woman. Tabyīn. jurists encouraged sex offenders not to disclose their illicit affairs.public interest. in YF.

Ibn Masʿūd imposed the punishment for drunkenness because the matter had become public—not by the fact that it was or was not done in public space.191 An important counter-example involves juristic treatments of defamation. compel imposition. but primarily for the preservation of public order. but by the very fact that it had entered the public domain of the court. moreover. and to the contrary. thereby infringing on the values of public morality that the ḥudūd prohibitions aim to protect. To account for this disparate treatment but to maintain the “God’s rights”—“individual rights” framework. most jurists created and categorized defamation as a case of “mixed rights” (ḥuqūq mushtaraka). E.g. so-called victimless crimes like wine-drinking. and lack of self-discipline was not a valid excuse for avoiding imposition of the ḥadd punishment. were not instituted for their own sake or any intrinsic moral value. Jurists developed this concept by the 5th/11th century to overcome the inconsistency between the private characteristics of defamation and the theory that all ḥudūd laws are in the public ḥuqūq Allāh category.192                                                                   191 Some later jurists even insisted that prohibitions that offended no clear private interest. it implicated “individual rights” and jurists thus accommodated a right of action or pardon for individuals—in contrast to other ḥudūd laws. Scenarios meeting this conception do not easily yield ḥudūd avoidance. Jurists applied similar arguments to the range of ḥudūd laws to articulate the public values at stake when any crime was committed. Wansharīsī. but aims to deter the harms [to the public sphere] that accompany excessive drinking and addictive behavior).public as to meet the most stringent of standards of proof. As usual in Islamic law. the offense had been proved through uncontested admission. 683-84 (noting a Mālikī view that the law does not prohibit wine-drinking for its own sake. jurists generated a plurality of opinions about the balance of 171    192 . as shown in the Case of the Drunken Orphan. As a ḥadd crime formally. But because of the intensely personal nature of the offense.” particularly when defamatory statements were made in the public space. In that case.. and to make determinations about whether imposition or avoidance was warranted. ʿUdda. it should properly be counted as one of “God’s rights.

82 (quoting van Ess. Māwardī.. Muqniʿ... The ḥudūd maxim could accommodate both if ḥudūd laws were taken seriously as guides for private behavior                                                                                                                                                                                                 public/God’s rights versus private/individual rights in crimes of defamation in light of the theory of ḥudūd laws and also to explain or justify the different legal rulings in each school governing the ability of a private offender to pursue or pardon defamation claims. Inasmuch as. these developments encapsulated a legal-political notion of ḥudūd laws. See. jurists attempted to acknowledge the state’s sphere of jurisdiction over public space but to limit its inevitable encroachments and abuses. ed. 378. Aḥmad Mukhtār ʿUthmān ([Cairo]: Zakariyyā ʿAlī Yūsuf. See.Kāsānī. 12:27778. 172    . Aḥkām al-Qurʾān (Beirut: Dār al-Fikr. What we have here is rather a characteristic example of [the jurist’s] sullenness toward the authorities—his ‘Staatsverdrossenheit’. n. 193 Cook. As they sought to limit the reach of the state. Ḥāwī. as van Ess has dubbed it. Commanding Right. and Mālikīs opined that the private aspects of the act preponderated. Shāfiʿīs categorized defamation as almost exclusively a private offense. See. the jurists maintained the theological-moral view of ḥudūd laws as rules of obligation alongside the legal-political theory of them as expressions of public morality.). e. Their uniform “stand in favour of privacy is reinforced by a marked element of hostility and mistrust directed against the state.g. Ibn Qudāma. 3:344. Ḥanafīs deemed it to be more of an exclusively public crime. 1:224) (other citations omitted). Abū Bakr b. in the latter conception.At some remove then from the theological notion of ḥudūd laws-as-moralobligation. at 1:212-13. for example] refuses to have anything to do with [the caliph] al-Mahdī’s suggestion that they join forces …. It is not out of concern for privacy that [one jurist.g. 3:1123. Badāʾiʿ alṣanāʾiʿ fī tartīb al-sharāʾiʿ. 9:4212-13. Mughnī. al-ʿArabī. and this third sentiment requiring public virtue and overlooking private vice—or else permitting state involvement—was the developed manifestation of how the jurists attempted to achieve it.”193 Imposition and avoidance were ever the tendencies requiring balance. e.g. Abū Bakr al.d. e. ḥudūd laws represented rules of public morality. Ibn al-Bannāʾ. Ḥanbalīs made it exclusively private. Theologie und Gesellschaft. 1968).

g. viewed cautiously as deterrents meant to champion the five overarching values that they had culled from the sources as binding the state and the public sphere. 8:288 (describing two purposes of ḥudūd laws as (1) severe punishments designed to deter crime. but operated less expansively when private interests (ḥuqūq al-nās) were involved.and protecting individual interests but. Their jurisprudence held that doubts as to the scope of the law or the evidence raised questions about individual culpability. Māwardī.194 Accordingly. One scholar explained that the ḥudūd maxim “takes precedence … because the greater interest (of                                                                   194 See. Ḥāwī. like courts. in the public sphere.. Jurists then used the ḥudūd maxim to bar sanctions when there was ambiguity about which public values—as ḥuqūq Allāh had come to mean—were at stake. Umm (1993).”). 173    . prosecution in such doubtful cases would run the risk of violating an individual’s personal entitlement to be free from harm when not in fact criminally culpable. which in turn raised questions about the validity of punishing an individual whose conduct was only dubiously criminal or who was only dubiously liable. and (2) spiritual purification or rehabilitation ). they typically concluded that the private interest had the upper hand. In other words. suffice it to present a few statements in this regard. For now. In other words. e. jurists used the maxim to carve out exceptions to the rule of mandatory imposition through doubt jurisprudence designed to attend to the law’s moral imperatives and assuage their moral anxieties while recognizing the obligatory nature of ḥudūd laws and rhetorically regulating the power of the state. Shāfiʿī. 1:99 (“Ḥudūd are punishments by which God deters (zajara bihā) people from committing prohibited [acts] and encourages them to follow [His] commands. The rationales that jurists later elaborated for this position are recounted at length elsewhere. when they placed the more specific private interest against the non-specific public interest.

”196 In other words. contained in the collections of ʿAbd alRazzāq.g. * * * The caliphs did not—and. could not—assume sweeping religious authority over the law.”195 Moreover. Wansharīsī. then release him. see Chapter 1. and devolve to ḥudūd enforcement as a final resort for offenses against public morality. For details and citations. he said.. 683-84 (fa-wajaba an yatarattab al-ḥadd ʿalā ʾl-taʿāṭī al-muṭlaq). so [may not be] imposed except and unless there is a complete crime established. Ibn Abī Shayba. ʿUdda. Bayhaqī. as it is better that the Imām make a mistake in pardoning than in punishing. jurists concluded that the law used the threat of ḥudūd sanctions to deter and punish proved criminal offenses. This was clear from just the few of the famous anecdotes where the state tries unsuccessfully to capture the jurists: the failure of Ibn al-Muqaffaʿ’s                                                                   195 Ibn ʿAbd al-Salām. Qawāʿid.the law) is in preservation of life. This is the most common version the maxim in ḥadīth works. E. but that the corollary to mandatory ḥudūd laws was an equitable usage of the ḥudūd maxim in order to uphold the laws’ public-moral values. All of this suggested that judges should accord primacy to individual interests over public ones when there was no clear threat to the public sphere. Tirmidhī.197 The point. jurists said. 196 197 198 Ibid. Version 2.”198 Consequently. In fact. Appendix. and Dāraquṭnī: idraʾū ʾl-ḥudūd ʿan al-muslimīn mā ʾstaṭaʿtum fain kāna lahu makhrajan fa-khallū sabīlah fa-inna al-imām an yukhṭiʾ fī ʾl-ʿafw khayr min an yukhṭiʾ fī ʾl-ʿuqūba. is not to impose the ḥudūd sanctions as much as possible. the value placed on private interests and the high stakes of the ḥudūd convictions require ḥudūd laws to be construed narrowly. if there is an exculpating cause for [the accused]. an oft-quoted version of the ḥudūd maxim says the exact opposite: “Avoid imposing ḥudūd punishments on Muslims as much as you can. 174    . “ḥudūd [sanctions] are harsh. no doubt. 2:279-80 (giving the example of a marriage of disputed validity).

175    . the latter aspired to provide a moral check against the government toward keeping it within the confines of the divine law—at least                                                                   199 See Māwardī. 244-46. Nor could the jurists exercise sweeping authority over public law. when it was put to the test. as caliphal authority after the first few caliphs was by and large held by leaders not considered to be scholars with a command of the prophetic message or moral-spiritual authority over the community at large. 200 This second fear appears starkly in a later period. jurists feared that neglect of ḥudūd laws would create a society that could not claim to be following God’s law. to name just two.200 The arrangement around which this question settled was one of at first contested and then shared spheres of jurisdiction. and moreover. Christian Lange observed that Muslims much preferred the seeming draconian criminal justice system of the Seljuk dynasty to the utter chaos that reigned when those authorities lost power in Khurāsān for some time beginning in 548/1153 until the Mongol invasion. On a fundamental level. the recognition of Abū Yūsuf’s authority as a jurist to articulate matters of public law that bound the caliphs.proposal to place law under the authority of the caliph.199 Given their rootedness in foundational texts and the nexus between juristic and political spheres of jurisdiction. amongst a short list of other public laws of shared jurisdiction. ḥudūd laws served as a bellwether for the legal system as a whole and the rule of law according to divine will. See Lange. At the center of these discussions. 250 (including enforcement of ḥudūd laws in a list of ten public duties that the state authorities must fulfill). Justice. al-Aḥkām al-sulṭāniyya. Between the governmental branches and the jurists. was criminal law. In that liminal space. would result in the absence of the rule of law and societal descent into utter chaos. Punishment. jurists encouraged at least the appearance of public virtue and protections of private vice to avoid the thorny questions of jurisdiction and violence that arose between them and the state authorities whenever it came to public vice.

the latter with enforcing it). which themselves underscored Islam’s core moral values. The tension between the two sets of imperatives and the resulting moral anxieties led to the doubt jurisprudence that required ḥudūd enforcement when death cases violations were public. proved with                                                                   201 See generally Māwardī. we have seen that jurists functioned as the “pious opposition” to what they perceived as political excesses in criminal law and elite social norms. the former sought to curb it. They opposed the state’s status-reinforcing under-criminalization by which high-status offenders were absolved from criminal liability.rhetorically if not always in fact. And in the process of elaborating the law. Jurists looked to the Prophet and ʿAlī as exemplars of justice and subservience because they needed a ḥudūd jurisprudence that was concerned both with the moral imperative to avoid taking life but also to avoid disregarding God’s criminal laws. Defining Doubt Jurists and political rulers championed two different sets of interests surrounding issues of morality and authority over law. the jurists were often at a severe disadvantage against the awesome power and quick action of the state when it came to actually seeing the law on the books come to fruition in society. In this vein. their moral anxieties about imposing the death penalty also led them also to oppose fairness-disregarding overcriminalization. and notwithstanding the state’s nod to their authority to do just that. 176    . al-Aḥkām al-sulṭāniyya (delineating the duties of jurists versus the political authorities—the former charged with interpreting the law. Where the latter institutionalized hierarchical norms and sought to maximize their authority over the law and the public sphere.201 Despite their continuing attempts to define the law and critique the state. 3.

Through generalizing death-is-different jurisprudence.certainty. and to ameliorate tendencies toward ḥudūd imposition. judges appealed to the doctrine of doubt. they were able to sneak softening principles into the legal canon with a strong argument that they had always been there and that this scheme was intentionally designed that way by the divine Lawgiver. Though the initial concerns behind the additional procedures were perhaps more personal and political than concerned with defendants’ “rights” per se. and more about how the jurists and the state would proceed when 177    . These standards contributed to shaping two central characteristics of Islamic criminal law: (1) that it was an area of shared jurisdiction between the jurists and state authorities and (2) that it was subject to more procedure in forms that appear a lot like the safeguards criminal defendants that arise in death-is-different jurisprudence that tends to avoid capital punishment. the avoidance tendencies in ḥudūd jurisprudence spread beyond the capital context to ordinary crimes as expressed in the ḥudūd maxim. which allows a judge to claim—in the face of pressures from the political operatives—and to complain—in the face of disregard from those same corners—that their hands were constrained by the law and bound by the facts or lack thereof. In efforts to avoid the tremendous pressure of high-status members of the elite and to ameliorate their own moral anxieties about following the law’s moral imperatives and punitive measures. This was a tall order. The maxim at once represented the jurists’ attempts both to maximize their own authority vis-à-vis state excess and encroachments on religious law. In the end. Islamic criminal law was less about what the text said. Shubha focuses on the insufficiency of the evidence. and without mitigating factors to remove criminal liability.

Until now.confronting situations about which the text did not say very much. taken on a case-by-case basis. to understate the case. we have seen instances of shubha in the common law-like way that it arose in the early Islamic context. Actual application was often harsh and marginally responsive to those concerns as political authorities seemed. How they did so and the diversity of approaches even amongst the jurists pursuing this common broader aim are the subject of the next two chapters. In subsequent centuries—leading to the rise of legal maxims literature that encapsulated the theory behind the casuistic rulings—jurists elaborated a more robust jurisprudence of doubt by defining shubha and claiming authority over it. * * * The meaning and circumstances defining shubha are so far. Juristic interpretation depended on hermeneutic methodologies developed by the jurists as they navigated socio-political demands and moral-divine ones. 178    . at best. ambiguous. The ḥudūd maxim qualifies the push of ḥudūd imposition to deal with cases of shubha— specifying that only in those cases should the ḥadd be avoided after being brought before the courts. less anxious about the moral-legal imperatives occupying the jurists’ attention.

biographical dictionaries (sometimes absorbed in fatwā collections). and the sources or types of sources where each case is found. citations to the place where it has been discussed most extensively are in bold. where the case has been discussed more than once. the rationales (both stated ones. the place where the events presumably took place [in brackets where surmised from the likely location of those involved]. typically reflecting moral anxieties with the death penalty and other severe punishments. this is for ease of reference for this and subsequent chapters. and presumed ones on the basis of the surrounding context and implications of the statements of the actors in each case). These cases fall into three groups: (1) Those reported in literary sources. Most of these cases feature elite judges and high-status offenders citing the ḥudūd maxim to avoid punishment. including historical chronicles. the judge presiding. For a fuller sense of the logic behind the selection of cases. and collections of anecdotes. note 66. (2) The “landmark” cases from Sunnī ḥadīth collections and other legal sources. Here. the decision (whether avoidance or imposition) and the legislated ḥadd sanction (according to fiqh opinions). The chart further offers the brief facts of each case.APPENDIX   Table of Cases Cited     Summary and Explanatory Note: The following is a list of 25 cases designed to provide an idea of and quick reference point for the types of cases that arose in the developing jurisprudence of doubt amongst early Muslim jurists. each case has been given a case name where one   is not mentioned in the text. see above. while the policy behind the second appears to mix moral anxieties. In all groups. where available. 179  . Citations to discussions in the text are also given in the first column. These fall into two categories: those aimed at ḥudūd imposition and those aimed at ḥudūd avoidance. (These cases are dubbed “landmark” because they are central to and repeated in later juristic discussions of criminal law and the jurisprudence of doubt. The typical policy behind the first group seems to serve the early juristic value of judicial subservience. as discussed in the text of Chapter 2. they are also typical of a broader panoply of cases in the early literature. and jurisdictional considerations regarding the public-private divide. the ḥadd charge. the cases uniformly pursue a path of ḥudūd avoidance. evidentiary concerns.) (3) ʿAlī’s Judgments hailing from Shīʿī sources.

Ibn Khallikān. Taʾrīkh Madīnat Dimashq. Wafayāt al-aʿyān Abū Yūsuf (d. instead. 681/1282). See Ch. p. 19-20. Wafayāt al-aʿyān 180    . Stated rationale for avoidance: the ḥudūd maxim as a ḥadīth Stated rationale for imposition: “admissions” that the poet would continue to blaspheme Imputed rationale [Fierro]: harshness for low status offender Stated rationale: Insufficient evidence (in Imām’s knowledge alone) Imputed rationale [Fierro]: lenience for high status offender Al-Khaṭīb alBaghdādī. note 56. Umayyad governor (and judge) Place Iraq Ḥadd Charge Zinā Decision Avoidance Ḥadd sanction: 100 lashes flogging for fornication. Ibn Khallikān (d. 2. then Imposition Ḥadd sanction: death penalty Sentence: execution. 158-169/775785). Nishwār almuḥāḍara. 2. ʿAbbāsid judge (first “chief judge”). p. Judge Khālid al-Qasrī (d. Nawādir al-khulafāʾ CASE 2-[Case of the Blaspheming Poet] ʿAbbāsid caliph Mahdī presides over accusations that the poet Ṣāliḥ b. 170-193/786-809) witnesses a member of his household committing zinā and calls in Abū Yūsuf to adjudicate. 167/783) was a “crypto-infidel” or masked unbeliever (zindīq) accused of making blasphemous statements. 15. Manṣūr al-Mahdī (r. Ibn ʿAsākir. See Ch. crucifixion over a bridge Rationales Stated rationale: actual innocence of the theft Imputed rationale [Fierro]: avoidance because of high status (both for theft accusation and for the possible zinā accusation) Sources One Thousand and One Nights (Alf Layl waLayla) Itlīdī. Ch. 182/798). 2. 1. having been caught inside the house with clothes belonging to the house’s owner.I. Taʾrīkh Baghdad. 15-16. pp. death by stoning for adultery Sentence: No sentence imposed. Ḥanafī jurist Baghdad Zinā Avoidance Ḥadd sanction: 100 lashes or stoning Sentence: No punishment mentioned al-Qāḍī alTanūkhī (d. ʿAbd al-Quddūs (d. CASE 3-[Case of Royal Indiscretions] Hārūn al-Rashīd (r. Third ʿAbbāsid caliph Baghdad Blasphemy Avoidance. the two are married to each other Muḥammad b. 20. 126/743). See Ch. 384/994). Literary Sources Case: Short Name & Facts CASE 1–[Case of the Secret Lovers] A young nobleman is accused of theft. pp. It is later discovered that the young man is seeing the young woman who lives in the house.

CASE 5-[Case of the Royal Concubine’s Naughty Nephew] The nephew of the royal concubine ʿAjab is accused of blasphemy. Taʾrīkh Ibn alWardī Yāfiʿī (d. jurisconsult Cordoba Blasphemy Avoidance Ḥadd sanction: death penalty Sentence: No ḥadd punishment. jurist. jurist. 749/1349). for which he is accused of blasphemy. 339/950). Mālik b. Akhbār alfuqahāʾ Qāḍī ʿIyāḍ (d. 915/1508). and others to adjudicate. Mālik. appeals to his brother. but imprisonment Stated rationale: the statement was illadvised. 544/1149). Ḥabīb (d. Madārik. Shifāʾ [whence Wansharīsī (d. Ch. Shifāʾ [whence Wansharīsī (d. 238/853). 36. 361/971-2 or 371/981). 2. Marqaba CASE 6–[Case of a Drunken Noble I] The Andalusian judge Ibn Abī ʿĪsā Ibn Abī ʿĪsā (d. Mālik b. 768/1366-7). Miʿyār] Khushanī (d. 15-18. idem.Ibn al-Wardī (d. 2. pp. Akhbār alfuqahāʾ Qāḍī ʿIyāḍ (d. Mālik. Ḥabīb (d. 544/1149). Andalusia Winedrinking 181    Avoidance Ḥadd sanction: 80 Stated rationale: n/a* Imputed rationale Nubāhī (d. Madārik. 713/ 1313-4). 18. 1. and others to adjudicate. p. See Ch. note 78. ʿAbd al-Raḥmān II. but not a ḥadd crime of blasphemy Presumed rationale [Fierro]: lenience for high status offender Khushanī (d. 713/ 1313-4). Mirʾāt al-jinān CASE 4-[Andalusian Blasphemy Case] Hārūn b. See Ch. jurisconsult Cordoba Blasphemy Imposition Ḥadd sanction: death penalty Sentence: Execution Stated rationale: n/a Imputed rationale [Fierro]: the concubine was not of high status . 238/853). Andalusian judge. Miʿyār] Nubāhī (d. The caliph [ʿAbd al-Raḥmān II?] appeals to his brother. Andalusian judge. The caliph. 361/971-2 or 371/981). Ḥabīb criticizes Muslims in favor of Christians. 915/1508). idem. p.

note 56. See Ch. Judge The Prophet Place [Medina] Ḥadd Charge Theft Decision Imposition Ḥadd sanction: hand amputation Sentence: Rationales Stated rationale: equal justice for high and lowstatus offenders Imputed rationale: judicial subservience Sources ḥadīth collections. 20. 2. ca. Zīrid vizier Ifrīqiya [Tunisia] Winedrinking Avoidance Ḥadd sanction: 80 lashes Sentence: No sentence imposed Ibn al-Khaṭīb. Kitāb aʿmāl aʿlām II. 26-27. attempts to intervene on behalf. 1090). Andalusian judge. p. “Landmark” Cases: Sunnī Ḥadīth and Law Sources Imposition Case: Short Name & Facts CASE 8-Case of the Makhzūmī Thief A woman of the Makhzūmī clan in the Qurashī tribe steals (or borrows and then denies it). 20. 2. Zayd. See Ch. Simāja al-Sanhājī (d. jurist lashes Sentence: No punishment imposed [Fierro]: the young man was of high status *But see commentary of Nubāhī (surmising that the judge could have avoided imposing the punishment on the basis of the young man having given a single confession or because the circumstantial evidence was insufficient to punish). note 56. p. Stated rationale: n/a Imputed rationale [Fierro]: the young man was of high status Marqaba CASE 7–[Case of a Drunken Noble II] Similar to above scenario. 63.spots a young nobleman and poet who is drunk and claims not to know of the Qurʾānic prohibition of [wine-] drinking but also threatens to revile the judge with negative poetry if he punished him. See Ch. fiqh treatises 182    . pp. son of the Prophet’s adopted son. for which Usāma b. 2.

but no information regarding stoning State rationale: the appropriate punishment for zinā is 100 lashes for the servant. 73. p. 65-66. Ibn Masʿūd (d. death by stoning for adultery Sentence: 100 lashes were likely imposed. al-Khaṭṭāb’s son takes his brother ʿAbd al-Raḥmān before the governor-judge of Egypt. 32/652-3). 2. fiqh treatises The Prophet Yemen. CASE 10-[Case of the Yemeni Servant] A house servant (ʿasīf) in Yemen is accused of committing zinā with the man of the house’s wife. fiqh treatises CASE 11-Case of the Drunken Orphan A man brought his orphaned nephew to Ibn Masʿūd on an accusation—and admission—of wine-drinking. Prophetic Companion. judge. 29-31. Medina Winedrinking Imposition Ḥadd sanction: 40 or 80 lashes Sentence: Lashes (amount unknown) administered privately by ʿAmr in Egypt.CASE 9-Ṣafwān’s Case A man steals a cloak from Ṣafwān b. Umayya on his way to Medina. See Ch. See Ch. 11:5986-87 (that the ḥadd sanction was avoided). pp. death by stoning for the wife if she confesses Imputed rationale: judicial subservience Stated rationale: qualms against severity does not lift ḥadd liability. fiqh treatises ʿAmr b. ʿAmr b. 31. See Ch. judicial subservience Imputed rationale: judicial subservience and publicity Stated rationale: n/a Imputed rationale: compassion or status do not lift ḥadd liability. See Ch. note 77. pp. Ṣafwān attempts to intervene on the man’s behalf by saying that he gifts the cloak to the man after sentencing. 30. al-ʿĀṣ (d. The Prophet [Medina] Theft Imposition* Ḥadd sanction: handamputation *But see Qudūrī. Tajrīd. publicity ḥadīth collections. after raising the case to the Prophet. Medina Zinā Imposition Ḥadd sanction: 100 lashes for fornication. after the Hijra. judicial subservience. al-ʿĀṣ on charges—and presumed admission—of winedrinking. 2. 28-29. 2. 2. Governor (and judge) of Egyptian capital at Fusṭāṭ Egypt. fiqh treatises 183    . 43/663-4). p. note 80. then again publicly by ʿUmar in Medina ḥadīth collections. CASE 12-[Case of the Drunken Brother] The caliph ʿUmar b. jurist Kufa Winedrinking Imposition Ḥadd sanction: 40 or 80 lashes Sentence: Not mentioned ḥadīth collections. Stated rationale: unable to change legal facts of the case after adjudication Imputed rationale: judicial subservience ḥadīth collections.

pp. 2. See Ch. 32. 61. Judge The Prophet Place [Medina] Ḥadd Charge Zinā Decision Imposition/ Avoidance Ḥadd sanction: death by stoning Sentence: Reportedly imposed. 2. 67.Avoidance Case: Short Name & Facts CASE 13-Case of Māʿiz Māʿiz b. alKhaṭṭāb (d. 34-37. and Yemen Zinā Avoidance Ḥadd sanction: 100 lashes or death by stoning Sentence: No punishment imposed. al-Khaṭṭāb directly (Version 2). fiqh treatises Sources ḥadīth collections. her story is corroborated by bystanders attempting to help her. though the Prophet said that the people should not have carried out the sentence ʿUmar b. Second caliph [Medina] or Minā. the people are told to feed and clothe her The Prophet [Medina] Zinā (rape) Avoidance* Ḥadd sanction: death by stoning for the rapist Sentence: No punishment imposed on the rapist *But see Ibn alQayyim. 2. knowingly. pp. pp. Ṭuruq. Stated rationale: repentance Imputed rationale: moral anxiety at death penalty ḥadīth collections. al-Khaṭṭāb (Version 1) or to ʿUmar b. CASE 15-[Case of Rape in Baghdad] A woman is raped on her way to the mosque. See Ch. See Ch. but not intentionally and not while not awake. fear of God’s wrath Imputed rationale: moral anxiety with imposing the death penalty ḥadīth collections. 37-38. the real perpetrator admits culpability. and was of sound mind when he did so. fiqh treatises CASE 14-[Case of the Mysterious Pregnancy] A woman comes to Abū Mūsā alAshʿarī in Yemen. and accuses the wrong person of assailing her. acknowledging that she had sex resulting in a pregnancy. Mālik confesses to the Prophet multiple times that he committed zinā. 60. 86 (reporting but 184    Rationales Stated rationale for imposition: criminal elements met Imputed rationale: judicial subservience Stated rationale for avoidance: he may have repented Imputed rationale: moral anxiety with the death penalty Stated rationale for imposition: actual innocence in that she may have been raped. but denied by the accused. who submits the case ʿUmar b. fiqh treatises . 23/644).

Zubayr.). 751/1350). Prophetic Companion. 2. 2-4. compassion Imputed rationale: publicity element. 58/677-8) is brought a complaint by his secretary. 68/687). See Ch. ch. Dukhayn al-Ḥajrī of drinking neighbors. jurist [Also: ʿAmmār. ʿIkrima?] Ḥijāz [Mecca?] Theft Avoidance Ḥadd sanction: handamputation Sentence: No punishment imposed Stated rationale: value of concealment (Abū Bakr notes he would do similarly). 60. CASE 18-[Case of Drunkenness in Medina] The first Umayyad caliph Muʿāwiya’s governor-judge in Egypt ʿUqba b. 39. fiqh treatises ʿUqba b. See Ch. 67. Governor and judge in Egypt Egypt Winedrinking Avoidance Ḥadd sanction: 80 lashes Sentence: No punishment imposed. CASE 17-[Case of Theft in Muzdalifa] A man steals a bag from the Companion ʿAmmār. note 164 (citing Cook. Fourth caliph. moral anxiety Stated rationale: value of concealment (based on a ḥadīth) Imputed rationale: publicity element. Ṭuruq] ḥadīth collections. 2. Abī Ṭālib (d.rejecting opinions that the ḥadd sanction was imposed). 1. First Imām Medina Murder Avoidance Ḥadd [here: qiṣāṣ] sanction: death in retaliation for the perpetrator’s act (qiṣāṣ) Sentence: No punishment imposed Ibn ʿAbbās (d. 81: citing further cases). which ʿIkrima criticizes (Version 2). 66. 58/677-8). CASE 16-[Case of Murder in Medina] A man murders another man for money in Medina. 40/661). pp. Qaḍāyā ʿAlī [whence Ibn alQayyim (d. 2. p. moral anxiety ḥadīth collections. ʿAlī b. fiqh treatises Stated rationale: n/a Imputed rationale: moral anxiety at death penalty Ibrāhīm alQummī (d. for which Ibn ʿAbbās and Zubayr chase him to retrieve the bag but then release him (Version 1). mid3rd/9th c. See Ch. Commanding Right. ʿUqba advises Dukhayn not to call the police and to admonish the offenders verbally 185    . ʿĀmir (d. ʿĀmir (d. p. until the real perpetrator admits culpability. a butcher found near the scene of the crime is arrested and convicted. pp.

mid3rd/9th c.). the first husband returns and accuses her of committing zinā. the child stays with the wife and first husband—who eventually claims paternity ʿUmar ʿAlī Imposition Avoidance [Medina] Zinā Avoidance Ḥadd sanction: 100 lashes or death by stoning Sentence: No punishment imposed. note 108. Qaḍāyā ʿAlī. and has a child with the second man. p. Shīʿī ḥadīth collections CASE 20-[Case of the Absent SlaveOwner] A slave driver has sex with a slave woman in his care while the masterowner is absent (traveling). 49. ʿUmar ʿAlī Judge Imposition Avoidance Place [Medina] Ḥadd Charge Zinā Decision Avoidance Ḥadd sanction: death by stoning Sentence: No punishment of stoning imposed. CASE 21-[Case of a Framed Rape] A woman frames a man whom she wants to either attract or punish if he will not give her attention.). 4647. p. the child stays with the slave driver. 2. 2. See Ch. mid3rd/9th c. pp. 47. Shīʿī ḥadīth collections Ibrāhīm alQummī (d.). she accuses him of rape. See Ch. the owner returns and accuses the slave driver of zinā. See Ch. Qaḍāyā ʿAlī. mid3rd/9th c. Shīʿī ḥadīth collections Sources Ibrāhīm alQummī (d.III. 186    . who has paternity ʿUmar ʿAlī Imposition Avoidance Medina Zinā Avoidance Ḥadd sanction: 100 lashes or death by stoning Sentence: No punishment imposed Rationales Stated rationale for imposition: criminal elements met Imputed rationale: judicial subservience Stated rationale for avoidance: n/a? Imputed rationale: moral anxiety with the death penalty Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: n/a Imputed rationale: moral anxiety with the death penalty [or lashes] Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: insufficient evidence [fear of false testimony] Ibrāhīm alQummī (d. Qaḍāyā ʿAlī. ʿAlī’s Judgments [Shīʿī Sources] Case: Short Name & Facts CASE 19-[Case of the Absent Husband] A woman remarries after her husband has been absent for two years. 2.

Imputed rationale: moral anxiety with the death penalty [or lashes] CASE 22-[Case of The Orphan and the Jealous Wife] A wife fears that her traveling husband will be attracted to their maturing orphan daughter when he returns.). Ch. 53-54. wife is sentenced to the ḥadd punishment for defamation [80 lashes]. pp. ʿUmar ʿAlī Imposition Avoidance [Medina] Zinā Avoidance Ḥadd sanction: 100 lashes or death by stoning Sentence: No punishment imposed on the orphan. 179/795). pp. 1. 2.] See Ch. Shīʿī ḥadīth collections Mālik (d. 80 lashes for defamation Sentence: No punishment for the husband (all Versions). Qaḍāyā ʿAlī. Shīʿī ḥadīth collections CASE 23-[Case of Sex with a Wife’s Slavewoman ] A wife accuses her husband of having intimate relations with a slavewoman belonging to her. No punishment for the wife (Version 1) or wife is sentenced to the punishment for 187    Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: evidentiary infirmity Imputed rationale: moral anxiety with the death penalty Ibrāhīm alQummī (d. mid3rd/9th c. ʿUmar tells the wife that he will stone the man for adultery. [In Version 3. See Ch. she enlists her neighbors’ help in framing the orphan by puncturing her hymen and then accusing her of having committed zinā. mid3rd/9th c. Qaḍāyā ʿAlī. against which he counters he had her permission. 2. severity with evidentiary infirmities Ibrāhīm alQummī (d. 49-50. prompting the woman to perjure herself. 52-53. payment of 400 silver pieces [for puncturing the orphan’s hymen. pp. ʿAlī tells her of the consequences – stoning for the husband or the ḥadd punishment for defamation for the wife if she is lying (Version 1) or sentences the man to death upon which the wife perjures herself (Version 2). Ch. Muwaṭṭaʾ (citing ʿUmar as judge who avoided) . Stated rationale: [constructed] false testimony/perjury Imputed rationale: moral anxiety with the death penalty. which was considered to have taken her virginity] ʿAlī [ʿUmar in Sunnī sources] Kufa or Medina Zinā [rather than theft] Avoidance Ḥadd sanction: 100 lashes or death by stoning for zinā [depending on whether construed as fornication or adultery].). 1.

CASE 24-[Case of Sex in Prison] A married man commits zinā in prison. p. guilt is not at issue. 1. see also Ch.). mid3rd/9th c. 52-53 (Version 3). 53. Qaḍāyā ʿAlī. 2.pp.). p. Qaḍāyā ʿAlī. but avoidance of stoning for adultery Ibrāhīm alQummī (d. 3) Avoidance Ḥadd sanction: death by stoning for adultery Sentence: 100 lashes for fornication. mid3rd/9th c. severity Ibrāhīm alQummī (d. Shīʿī ḥadīth collections 188    . 54. severity Stated rationale for imposition: n/a Imputed rationale for imposition: harshness portrayal Stated rationale for avoidance: diminished culpability (no access to licit sex while traveling) Imputed rationale: moral anxiety with the death penalty. 53. ʿAlī [Kufa] Zinā defamation (Versions 2. See Ch. ʿUmar ʿAlī Imposition Avoidance Medina Zinā Avoidance Ḥadd sanction: Death by stoning for adultery Sentence: 100 lashes for fornication. See Ch. but avoidance of stoning for adultery Stated rationale: diminished culpability (no access to licit sex while imprisoned) Imputed rationale: moral anxiety with the death penalty. notes 125-28. For other judgments of ʿAlī. 1. p. Shīʿī ḥadīth collections CASE 25-[Case of Sex while Traveling] A married man from Yemen commits zinā while traveling in Medina.

Introduction We posited in the last chapter that the traditions and early cases tending alternately toward ḥudūd imposition and ḥudūd avoidance reflected competing moral concerns of early Muslim jurists. pardon. These concerns both reflected and responded to the jurists’ relations to the political authorities and to their policies. These jurists were mostly concerned with judicial subservience to divine will and Islamic law’s substantive moral imperatives. Imposition amongst Early Jurists: Methodology and Doubt I. But if jurists were to make a convincing case for doubt and properly ameliorate their dual anxieties (between judicial subservience in imposing punishments and other moral values counseling avoidance). Jurists uniformly agreed on the mandatoriness of applying ḥudūd laws. Recognizing that both tendencies existed and that the ḥudūd and other maxims were the pithy but normative 189    . there was a case for ḥudūd avoidance only when there was a case for doubt (shubha). Intercession. and they held that ḥudūd punishments were triggered only when there had been a clear criminal violation brought before a court and proved without any mitigating circumstances.CHAPTER 3 Ḥudūd Avoidance vs. which was seen as the public-moral sphere of shared jurisdiction between juristic and political authorities. and overlooking acts of wrongdoing were typically available only before the matter came into the court. they had to make sense of the competing early precedents in criminal law of ḥudūd imposition and avoidance. In that realm.

Gradually. when was imposition of the punishment mandatory. These are the same jurists who 190    . jurists grappled with how the divergent cases of imposition and avoidance interacted with the texts and evidentiary rules that laid out the laws in the first place. Part of the professionalization involved building robust and schoolspecific theories of doubt in this earlier period. we saw previously that judges and jurists alike recognized the ḥudūd maxim. jurists had to delineate when and what types of doubt triggered the maxims. But they approached questions of ḥudūd imposition and avoidance without an overarching theory of doubt to guide their decisions. The first order of business was to define the elements of the crime and evidentiary requirements for either ḥudūd imposition or avoidance in seeking balance between the competing tendencies toward each. jurists elaborating the law in fiqh works attempted to move in the direction of systematization. This chapter examines juristic conceptions of the ḥudūd maxim in some major extant legal manuals of the first three to four centuries. with their own methodologies. concerned as they were with epistemological certainty in interpreting and applying God’s law. During the first three centuries of Islamic history. This development coincided with the moment at which the ḥudūd maxim became both prophetic (as discussed in Chapter 1) and increasingly central to criminal law (as elaborated in the next Chapter). Yet it is only after this period (beginning in the 4th/10th century) that identifiable professional legal schools. as we will see.expressions of those tendencies. and when was it not? It was the task of jurists to sort this question out. came into their own. In other words. Given the anecdotal cases in which the ḥudūd sanctions were imposed at times but avoided at others.

191    . we are concerned with the steps that jurists took toward interpretation. 5 U. it sought to locate the place of the ḥudūd maxim in the courtroom together with the moral concerns reflected by the jurists’ selective recounting of criminal cases. The quotation is in reference to a comparable sense of “law” and the jurists’ role in interpreting it on the American Supreme Court as outlined by Chief Justice John Marshall in his exposition of the “Judicial Power” mentioned in the Constitution. In this chapter. except now they are commenting not on individual cases but on divine “legislation” (tashrīʿ. See Marbury v. how did they identify and define the text of the legislation governing the application of doubt jurisprudence before it reached the courtroom? That is.1 Here. 1993). I elaborate and build on the earlier observation that jurists placed primacy on certain values when selecting and recording criminal cases forming                                                                   1 Elsewhere I have elaborated the idea that Islamic law refers to both normative substantive rules and the processes through which jurists interpret the law (fiqh) in attempts to better approximate the ideal law (sharīʿa)—in their role as the body qualified and endowed with the epistemic authority to “say what the law is. the previous chapter discussed the application of criminal laws.” See my “We the Jurists. Madison. 542-43. see Chibli Mallat.recorded and discussed the ḥadīth-cum-criminal cases that express certain anxieties related in the previous chapter. New York: Cambridge University Press.S. 177 (1803). The Renewal of Islamic Law (Cambridge. For a similar observation made with respect to the juristic role in interpreting a modern “Islamic” constitution. In other words. This they did through devising interpretive frameworks to say what the law is. (1 Cranch) 137. naṣṣ) as derived from the foundational texts of the Qurʾān and the Sunna—the latter of which itself came to be defined in different ways. 79. we are concerned with the normative rulings of criminal law that jurists derived and elaborated based on the texts together with existing or ideal practices presented in the early precedents through which they sought to restate the law and detail rules for prospective applications of it. Here jurists are concerned with elaborating the outlines of criminal law against the backdrop requirements of ḥudūd enforcement and the accompanying practice of ḥudūd avoidance.” University of Pennsylvania Journal of Constitutional Law 10 (2008): 527-79.

Boston: Brill. In elaborating this criminal law and the beginnings of the accompanying doubt jurisprudence in their law manuals. judges typically were to avoid ḥudūd sanctions based on evidentiary concerns. Finally.2 Shāfiʿī is also a useful starting                                                                   2 For the most recent English-language monograph on Shāfiʿī’s work. as we address the interpretive and methodological principles that come to define each school. First. Lowry. Early Shāfiʿīs We begin with Shāfiʿī. see now Ahmed El Shamsy. the juristic regard for ḥudūd avoidance took a casuistic tone that looked to the early precedents and continued to proceed on a case-by-case basis. esp. Throughout this discussion. we will observe that they are all textualist. When they did recognize cause for ḥudūd avoidance. II. namely a doctrine of judicial subservience and other moral imperatives. which led to anomalous rulings of ḥudūd avoidance whenever contracts were involved. we witness them folding another element into the mix: a focus on judicial interpretive methodologies. They differed however on what text encompassed and thus how it should govern their doubt jurisprudence. 2007).normative statements of law. 6. 10. instead. see Joseph E. From Tradition to Law: The Origins and Early Development of the Shāfiʿī School of Law in Egypt (unpublished PhD dissertation. Shamsy is careful to note that he does not imagine Shāfiʿī as 192    . I hope to demonstrate three main points. The main exception to that was the Ḥanafī privileging of commercial law. We detail that of each school in turn. Early Islamic Legal History: The Risāla of Muḥammad ibn Idrīs al-Shāfiʿī (Leiden. 8-16 (for a useful literature review of Shāfiʿī studies in contemporary Western literature on Islamic law). For an excellent treatment of Shāfiʿī’s thought vis-à-vis other juristic currents of his time. Harvard University 2009). rarely was it on the basis of the substantive law. there was no robust theory of shubha during this time. His work represents the “first enduring expression” of existing developments in the scholarly and juristic circles concerned with creating “epistemological analyses of the authenticity of Hadith” and establishing theoretical frameworks for elaborating the law on those bases.

Christopher Melchert. see Shamsy. nor fully rationalist. had a sizeable and enduring impact on those schools.                                                                                                                                                                                                 the “master architect” of Islamic law. Early Islamic Legal History. Sharīʿa: Theory. Ibn Ḥanbal (d. 47-76). “Was Al-Shāfiʿī the Master Architect of Islamic Jurisprudence?. A fifth school is Ẓāhirism. 4 Lowry is at pains to defend the “middle of the road” view of Shāfiʿī as neither fully traditionist. 7 and Chapters 2 (pp. but that Shāfiʿī’s “revolutionary legal paradigm … played a central role” in the shift from tradition to law. 4. but as straddling a line between the two as an idea gaining currency in the field. The school’s early outlines of law constitute more a school of traditionism than law and as such are placed at the margins of this analysis. see Wael Hallaq. 13. which actually preceded him—Ḥanafism and Mālikism. Also see now idem. 4 (1993): 587-605). See Lowry. they deserve the independent treatment given them in Chapter 5. as noted in Chapter 1: their traditionism led them to reject or relate to the ḥudūd maxim differently from the other schools. Early Islamic Legal History. and Shāfiʿīs influence on the other schools. History of Islamic Law. For a discussion of the Mālikī and Ḥanafī influences on Shāfiʿī. Maḥmaṣānī. There is another reason for sidelining discussions of these two schools. see generally Coulson. From Tradition to Law. Practice Transformations (Cambridge. 32576 (English trans. 313-16. history. Coulson.” International Journal of Middle East Studies 25. Ibn Ḥazm. 27-158. 5 For standard works that detail the formation. Wael Hallaq. For specific examples of his text-based interpretive principles. Farhat Ziadeh. through situating and analyzing the role of the ḥudūd maxim in their discussions of criminal law. see Lowry. which also post-dated Shāfiʿī (its founder. 193    .3 He. (Leiden & New York: Brill. Chapter 5 (pp. The Formation of the Sunni Schools of Law: 9th-10th Centuries C. see Shamsy. A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Cambridge: Cambridge University Press. Dāwūd al-Ẓāhirī died in 270/883-4) and similarly represented a school of traditionism until it was elaborated into a Ẓāhirī theory of law. Ibid.4 The aim here is not to detail the history and broad content of the school differences amongst legal schools. 1997). 1997). From Tradition to Law. History of Islamic Law. New York: Cambridge University Press. For a reading of Shāfiʿī’s writings as polemical texts against other contemporaneous legal and theological currents. 4 (pp. most notably by introducing a ḥadīthbased textualism alongside existing rationalist and other interpretive tools.E. chap. the latter’s detailed critiques of their approaches. The Philosophy of Jurisprudence in Islam (Leiden: Brill.point because he attempted to provide the most comprehensive theory of the law that at once accounts for and responds to the interpretive approaches of the other enduring legal schools. 121-127). 241/855) lived some decades after Shāfiʿī and it took even more time for his disciples to develop a Ḥanbalī theory of law. and doctrinal differences distinguishing the main Sunnī schools of thought. 3-6 and accompanying footnotes (citing and rejecting Coulson’s formulation of “master architect” in Noel J. 1961)).5 It is to identify how their differing interpretive approaches manifested in and related to the development of a role for legal maxims in the law. 2009). 186-207. 275-318. 3 Ḥanbalism is considered a fourth law school and post-dated Shāfiʿī. 186-207). in turn. for an earlier study. its last significant exponent. Accordingly. Falsafat al-tashrīʿ. died in 456/1064. This school did not endure.

the texts underlying ḥudūd laws). 194  8   .Shāfiʿī recognized the tendencies of ḥudūd avoidance and imposition from earlier precedents. nor did they use analogical and other forms of reasoning prevalent in Sunnī schools of all stripes during the later period. dependent as they were on him first laying out the proper circumstances of enforcement. Instead. 11-12. see ʿAbd al-Majīd. He saw those as weak. al-Ittijāhāt al-fiqhiyya ʿinda aṣḥāb al-ḥadīth fī ʾl-qarn al-thālith al-hijrī ([Cairo]: Maktabat al-Khānjī. 14-24. He occasionally invoked the ḥudūd maxim in discussing limited circumstances of ḥudūd avoidance. appealed to a type of juridical “intuition” of a legalist mind. see Shamsy. Rather. see ʿAbd al-Majīd Maḥmūd ʿAbd al-Majīd.6 Criminal law was no exception. From Tradition to Law. he rejected the “legalist minded”7 arguments of Abū Ḥanīfa and his associates in Iraq and the practicebased arguments of Mālik and his followers that drew from the “living tradition” embodied in the practice (ʿamal) of the people of Medina as representative of the Sunna. Having studied under leading jurists in Iraq and the Ḥijāz.e. But he was not very concerned with elaborating instances of ḥudūd avoidance. particularly amongst Muʿtazilī and Shīʿī jurists. Ittijāhāt. wrong-headed statements by his time of what the law was as contained in the ḥadīth literature and the juristic opinions explaining the law (raʾy).. 31-92. For multiple definitions of Sunna. For a more in-depth discussion of Iraqi raʾy as a form of systematic legal reasoning based on rational propositions and counter-propositions that generated countless hypothetical cases (masāʾil) on which the law was worked out and for examples.8 None                                                                   6 For a discussion of interpretive trends before Shāfiʿī and the major differences between those who practiced a type of “pragmatic” reasoning (ahl al-raʾy) and those who relied on the text of ḥadīths as bases for law (ahl al-ḥadīth). in his view. they did not use pragmatic or practical reason as elaborated in later periods. 1399/1979). esp. but focused on ḥudūd imposition when explaining ḥudūd “legislation” (i. he was concerned with bringing order to the growing chaos of divergent and often. and provincial bases for identifying and following the Sunna—what the Prophet said and did and directed his Muslim followers to do. which has been called dhawq al-sharīʿa (literally: “a taste for the law”) and even firāsa (discussed in Chapter 2 as “judicial acumen”). 7 I use this term rather than “reason-based” to capture the sense in which early Ḥanafīs approached law and legal interpretation. subjective.

idem. 49-50 (citing a criminal law debate to reveal the plurality of opinions in Shāfiʿī’s attempt to show that “not only [had] jurists and governors—both carriers of the normative ʿamal in the Mālikī framework—disagreed on individual issues. of which other sources such as consensus (ijmāʿ) and the opinions of the Companions were derivations. which is widely considered the first work of jurisprudence (uṣūl al-fiqh). Shāfiʿī needed to devise a way of dealing with conflicting precedents. Wael Hallaq. which created uncertainties that rankled with Shāfiʿī and the ʿAbbāsid state alike—resulting in Ibn al-Muqaffaʿ’s proposal to codify the law into a single book with singular opinions).11 To understand how his approach translates into                                                                   9 For discussions. 42-43 (“Not only did he reject the use of sources that [he deemed] not Islamic. Bernard Weiss (Leiden: Brill. chapter 4. “Early Islamic Legal History..g. “Does Shāfiʿī Have a Theory of ‘Four Sources’ of Law?. contradictory opinions through a plethora of hypothetical scenarios and the Mālikī arguments produced more than one interpretation of practice.” 16 (“[I]t can no longer be sensibly maintained that Shāfiʿī founded the sciences of uṣūl al-fiqh or that the Risāla simply constitutes 195    . To that end. he argued. 2002): 23-50. History.”).e.” esp. such as custom and personal opinion.” in al-Imām Muḥammad ibn Idris al-Shāfiʿīs al-Risāla fī Uṣūl al-Fiqh: Treatise on the Foundations of Islamic Jurisprudence (Cambridge: Islamic Texts Society. inasmuch as the Ḥanafī arguments produced multiple. The circumscribed sacred past [as contained in ḥadīths thus provided an unchanging and authoritative measuring stick—a canon—by means of which the jurists could evaluate and categorize new cases.” in Studies in Islamic Legal Theory. From Tradition to Law. 11 See Khadduri. the Risāla. He articulated many of these methodological moves in his work.of these arguments yielded a clear-cut means of knowing the Sunna. Shamsy. Lowry. “Introduction. but he also defined the method by which legal reasoning was restricted within the framework of authoritative sources [i. Joseph E. 1987). 588 (arguing that Shāfiʿī’s designation as “founder of uṣūl al-fiqh was a later creation” as “his Risāla had very little. From Tradition to Law. was contained in the text of traditions that elucidated earlier precedents of the Prophet and his successors. “Introduction. 29 (describing the fluidity of opinions generated by those who subscribed to legalist-minded interpretation (ahl al-raʾy).” 40 (calling him the “founder of uṣūl al-fiqh (roots or sources of the law)”). he attempted to articulate rules to guide the interpretive process and to systematize the law. Coulson. both—in Shāfiʿī’s view—conflicted often enough with the reports of prophetic practice!9 A more objective indication of Sunna. “Was AlShafiʿi the Master Architect. This past was enshrined in and accessible through verifiable reports— primarily the Qurʾān and the Sunna.10 But even with that premise. if any. but also … these sources in fact contradict the Mālikī position that claims to be based on them …. Many disagree with this designation.”) (citations omitted). authentic ḥadīths]. cf. 54 (“Al-Shāfiʿī’s solution for safeguarding the integrity of the revealed message was to isolate the sacred past as a clearly defined and uniquely normative category. ed. 10 See Majid Khadduri.. see Shamsy. effect during most of the 9th century”). e. See.”). such as—in criminal law—the competing tendencies toward ḥudūd imposition and avoidance.

Qurʾān. the text of the Qurʾān provides a starting point for criminal law.criminal law rulings. Rifʿat Fawzī ʿAbd al-Muṭṭalib (Manṣūra. 7:319.”12 Yet such scriptural laws are incomplete without the traditions. This may be referred to as his “starting point” quite literally. [Egypt]: Dār al-Wafāʾ liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ. 2008). juristic preference. there may however be remaining citations to an older edition. Umm. 7:325 (wa-laysa fī aḥad ḥujja maʿa Rasūl Allāh [honorific omitted] wa-ʿalā ʾlmuslimīn ittibāʿuh fa-lā ilā ḥadīth ṣaḥīḥ dhahaba man khālafnā wa-lā ilā mā dhahaba ilayh man taraka ʾl-ḥadīth wa-ʾstaʿmala ẓāhir al-Qurʾān). See ibid. Umm. an exemplary punishment imposed by God. male or female … as their due for their crime. as in the verse commanding hand-amputation of the “the thief. NB: I have used this edition where possible because it is the only critical edition of this work (first published in 2001). With Shāfiʿī and Mālikī jurists. evaluating them for authenticity—reconciling the valid reports and rejecting the spurious ones. 5:38 (al-sāriqu waʾl-sāriqatu fa-ʾqṭaʿū aydiyahumā jazāʾan bi-mā kasabā nakālan min Allāh …. Accordingly.13 Any discussion of ḥudūd laws must then begin with the textual rules requiring imposition—                                                                                                                                                                                                 the first work of this discipline. the final outcome of a given legal problem would depend on the existence of a local custom. Shāfiʿī argues. A. a jurist must look to authentic traditions. Shāfiʿī rejects definitions of theft that diverge from his conception. 7:319. Shāfiʿī begins the chapter on criminal law with a citation to and discussion of this verse in the course of discussing his methodological approach generally. Umm. 12 196    . ed. because the Risāla is not a work of uṣūl al-fiqh at all. 13 Shāfiʿī. that any taking constitutes theft based on the apparent meaning of the Qurʾān without reference to traditions where the Prophet defined theft with respect to a certain minimum value. contending for instance. we can look to his work. as marked below. to gain a full understanding of law. For him. See Shāfiʿī. But the truth of the matter is that Shāfiʿī was the first to systematize the law through elaborating some theory of sources toward greater consistency and predictability in legal interpretation. or some measure of juristic insight not readily apparent to another jurist in another locale or with different sensibilities about the law. Commission. namely.. which—compiled later in his life— contains and explains his most developed opinions of substantive law (fiqh). or that the actionable amount was more or less than ¼ dīnār because these are based on inauthentic traditions. the need to read Qurʾānic verses in light of authentic ḥadīths. Shāfiʿī was the first to commit to a consistent method for deriving and justifying the law. Ḥudūd Definition.).”). Shāfiʿī makes arguments designed to outline the elements that require ḥudūd imposition rather than those necessary to trigger avoidance—though the two are certainly related and later conceived of as inverses to one another. Imposition In his discussion of criminal law.

372-73 (citing the ḥadīth. 7:324. He understood the incident to exemplify a rule of ḥudūd imposition.14 Because the thief had come to own the stolen item. gifted the stolen item to the thief] before [coming to me with the charge]. which state alternatively that the minimum amount was ¼ dīnār or 3 dirhams by equating the two. 557. i.e. Under this rubric. For him. “Hand-cutting is due for (theft of goods worth) ¼ of a dīnār or more: al-qaṭʿ fī rubʿ dīnār fa-ṣāʿidan”).e. 197    . Tajrīd. (3) by someone who was not entitled to the property. 11:5987.. Here. For a citation of all four traditions and discussion of the dispute between Shāfiʿī and Abū Ḥanīfa. Shāfiʿī is apparently reconciling multiple ḥadīths. avoidance is contemplated only after establishing criminal liability with respect to the substantive criminal law. Abū Ḥanīfa accepted the possibility that all ḥadīths on the matter were authentic reports. “if only you had done so [i. Ittijāhāt. 3 dirhams).15 Further. 10 dirhams as the minimum actionable amount. their interpretation is wrong because it disregards the general rules governing the basic elements of theft. as we will see. and out of a principle of precaution (iḥtiyāṭ). adopted the highest stated amount. the traditions clarify that ḥadd liability is established when the elements for a completed theft are met: (1) a taking of an actionable amount of a minimum of ¼ dīnār (that is. Umm. 1. these                                                                   14 For the Ḥanafī argument to this effect. further discussed below. 15 Shāfiʿī. some jurists mistakenly read the Prophet’s statement to Ṣafwān in that case.” to mean that there was no ḥadd liability and that perhaps the sentence was not carried out. they say. see ʿAbd al-Majīd. and arises typically based on non-textual. Significantly. evidentiary grounds. But for Shāfiʿī. Defining Criminal Elements Shāfiʿīs treatment of Ṣafwān’s Case is a case in point. see Qudūrī. (2) from a secure location (ḥirz).. he is implicitly rejecting additional ḥadīths stating that the minimum amount was 5 or 10 dirhams. carrying out the sentence would be tantamount to punishing the now-actual owner for the theft of his own property.meaning both Qurʾān and Sunna (as embodied in authentic ḥadīths). According to Shāfiʿī. including elements of timing and culpability in ḥudūd laws.

19 Essentially. notwithstanding Ṣafwān’s attempt to change the facts of the case after the verdict. In that case. whenever those elements are complete. 17 For the positions see Ibn Jarīr al-Ṭabarī. 7:378 (noting that the ḥadd is due even if the stolen item is gifted to the thief before the imposition of the ḥadd punishment or if he has gained partial ownership interest (malakahā bi-wajh min wujūh al-milk)). Shāfiʿī added the timeliness element                                                                   16 Shāfiʿī. there is ḥadd liability on clear textual bases. anyone who is in a public place (mawḍiʿ mubāḥ). It is within this framework that he interprets Ṣafwān’s Case. Shāfiʿī was reacting against considerable debates about the basic elements of theft:17 He insisted on elaborating that law based on what he takes to be certain. bathroom. and sleeps on his cloak (thawb). initially. 7:377 (extending this example broadly. All of these elements were completed at the time of the crime. he took it from a secure location (as Ṣafwān had attempted to secure it under him while sleeping). not after a judge has issued a guilty verdict and sentenced the offender.18 and the cloak presumably was worth more than ¼ dīnār. 7:326 (al-ḥadd innamā wajaba yawm kāna ʾl-fiʾl). and the ḥadd punishment is not to be avoided. that becomes a secure location. 1997). Ibid. the ḥadd punishment was due. The important point to note here is his emphasis that. which barred the possibility of ḥadd avoidance. Because these elements were met. likewise. 3:220-22. Ṭabarī disagrees too with the view that the verse is general. there were no ḥadīths in which the Prophet turned someone away for stealing only a single dirham—unlike the case found in Ibn al-Qāsim’s case. based on the more sound traditions. Shāfiʿī. whether he is in a desert. Umm. under him (bi-ʾḍṭijāʿih ʿalayh).). 19 18 Ibid.elements must be completed at the time of the offense. authentic traditions. noting that some scholars relied on the apparent meaning of the verse (ẓāhir al-āya) to hold that no minimum value was required and that. the thief was ḥadd eligible because he met the basic elements. Umm. Jāmiʿ al-bayān ʿan taʾwīl āy al-Qurʾān [hereinafter Tafsīr]. ed. holding that it specifically refers to theft of the value of at least ¼ of a dīnār (gold coin). Ṣalāḥ ʿAbd al-Fattāḥ al-Khālidī and Ibrāhīm Muḥammad al-ʿAlī (Damascus: Dār al-Qalam. He took Ṣafwān’s cloak at a time when he did not own it. 198    . that Ibn al-Zubayr imposed the ḥadd for a single dirham (silver coin)). Beirut: al-Dār alShāmiyya. 346 (noting that a judge should always look at the status of the offender at the time of the theft (fa-ʾnẓur abadan ilā ʾl-ḥāl allatī yasruq fīhā ʾl-sāriq)). or otherwise.. because this is the way he secures his own belongings.16 In some measure.

slaves who steal from their masters might not be liable for ḥadd punishment at all. Here. the text requires that he receive only half of the ḥadd punishment for free persons. 7:374-75. worth 80 dirhams. Umm. terminally ill defendants. if they commit an indecency. sometimes mitigating or barring criminal punishment. other exceptional categories that decrease or delay ḥudūd punishments include pregnant women. 7:343-45. because it is textual. etc. 7:367. 4:25 (“As to slavewomen who become respectable married women (lit. see Qurʾān. if the crime is indeed proved to have been committed by an offender who was a slave at the time of the offense. Say the slave steals from his master. those who would die if punished (esp. in this refine his definition of theft both to explain Ṣafwān’s Case and to draw on it as a prophetic precedent to clarify whatever ambiguities were left by the other foundational texts as to the law of theft. Shāfiʿī cites an early precedent wherein ʿUmar ruled that a slave could not be punished for stealing his mistress’s mirror. 199    . he or she will not necessarily receive the full ḥadd punishment. and interacts with the timeliness requirement to bar criminal liability. For example.”). Shāfiʿī. 21 Aside from slavehood. if a slave commits a crime. for theft) because of extreme heat or cold. the (former) slave is not fully ḥadd eligible. but (unlike some jurists) that gender makes no difference.: ‘chaste through marriage’). then they are to receive half the punishment of free married women …: fa-idhā uḥṣinna fa-in atayna bi-fāḥishatin fa-ʿalayhinna niṣfu mā ʿalā ʾl-muḥṣanāti min al-ʿadhāb … . Shāfiʿī noted that this added timeliness element can have an opposite effect. Relatedly. See ibid. Shāfiʿī                                                                   20 Ibid. For the Qurʾānic verse imposing a half-punishment in the context of zinā. the Prophet ordered that he be hit lightly twice with a plant that had 50 burrs on it— thus satisfying the formal requirement of 100 lashes. commits defamation. slaves who commit crimes are liable for only half the ḥadd punishment. Shāfiʿī notes that adulthood or majority is a requisite element for ḥudūd liability. and the master frees him before judgment is rendered. In a famous case of a terminally ill man who was found guilty of having committed zinā. Like all other jurists... By a Qurʾānic rule.20 Shāfiʿī applies this to the hypothetical scenarios here to hold that the rule still applies.21 Here. the text of the Qurʾān is controlling. or has sex outside of marriage.

the act must be categorized as fraud. Instead. he has in mind reports of early authorities (including ḥadīths. citing a case wherein Zayd b. focused on traditions. reading: khulsa. Whenever the textual bases are established and the elements completed. nor does he refer only to texts with sound prophetic provenance. who had free access to the household.explains that slaves and masters take from one another’s property regularly.. Shāfiʿī does not mean the clear import of ḥadīth texts. modern term: ikhtilās]). the significant point of concern is not a tendency toward ḥudūd imposition or avoidance. with no ownership interest. There was no question of him taking from a secure location. breach of trust or the like (khiyāna)—which does not meet the definition for the specified ḥadd crime—rather than theft—which does. and                                                                   22 Ibid. āthār.22 These treatments show that. But the additional element—stealing from a secure location—was not met. that would have amounted to a secure location for which the woman she would have a claim. and (3) these elements were satisfied at the time of the taking. dishonesty. rather it is defining the criminal elements on textual bases. only three of the now-four elements (a taking. as would a person who locks the door of a rented house if the owner then enters and steals his belongings. Had the slaves been prevented free access. Thābit said (laysa fī khalasa qaṭʿ [alt. 7:382-84 (noting that the same applies to khalasa. the woman of the house lived with the slave. the legality or criminality of the “taking” was not free of doubt (bi-ghayr shubha). (2) he did not own the mirror. But as these were not the fact of this case. Instead. and timeliness) have been met: (1) the slave took an item worth an amount well above the minimum actionable amount of just three dirhams (or ¼ dīnār). the ḥadd is to be imposed. Unlike the thief in Ṣafwān’s Case. for Shāfiʿī. In other words. The foregoing discussion should make clear that by traditions. from secure location. 200    .

Shāfiʿī launched into a lengthy discussion designed to prove that the prohibition on drinking was a broad one.. particularly between Shāfiʿī and jurists in Iraq. 25 Of particular concern was nabīdh or ṭilāʾ. see ibid. He cited over two dozen traditions to explain that the Qurʾānic prohibition of wine extends to all intoxicants. 239-40 (defining nabīdh as a type of infused drink produced by soaking dried or fresh fruits.. and even modifications to the textual traditions offered by Companions. For Shāfiʿī’s view. Qurʾān. 237-40 (classifications).25 In particular.24 Yet many Iraqis did not regard as illegal intoxicating drinks made from dates and other substances or prepared in certain ways. as well as fuqqāʾ which the Shīʿa specifically prohibited. For definitions. along with most other jurists. implicit rules extracted from cases over which leaders of the earliest community presided. 7:365-66. who flogged someone for drinking ṭilāʾ). e. which proto-Ḥanafīs amongst Iraqi jurists permitted. For classifications of the other types of intoxicating beverage typically discussed by these early jurists. based on the Qurʾānic prohibition and supplemented by a ḥadīth saying as much. to support this opinion.” citing multiple traditions to that effect as well as precedents of ʿUmar. esp. The Qurʾān specifically prohibits wine-drinking.23 Shāfiʿī. Abū Ḥanīfa ruled that ḥadd liability attached only for drinking such beverages in such quantity that one actually became intoxicated. see Haider.caliphal directives) as contained in their explicit directives. held that all intoxicating drinks are prohibited. 201    26 . Shāfiʿī. and drinking any intoxicant                                                                   23 All jurists agreed that the Qurʾān prohibited wine-drinking (khamr). the contours of which were of considerable debate. Umm. with an unknown narrator in its chain and ignoring the vast evidence that he presents in the form of over a dozen reports that anything that intoxicates is ḥarām. 5:90. and ṭilāʾ as drinks produced by simmering grape juice until it had been reduced to one-third of its original volume). respectively. Chapter 6 (on alcohol and the Islamic debate over prohibition). until the water became sweet with the fruit. 24 All but the Ḥanafīs regarded the prohibition as a general one. see his Umm. Shāfiʿī criticizes Abū Ḥanīfa for relying on a ḥadīth.26 To counter this. raisins or grapes. An example of the latter concerns the punishment for drinking. Zaydism and the Politics of Perpetual Revolution. The debate boiled down to a matter of interpretation. which the Qurʾān specifically prohibited.g. 7:365 (“every drink that intoxicates is prohibited: kull sharāb askara fa-huwa ḥarām.

see Modarressi. “Early Debates. Umm. Shāfiʿī readily acknowledged that no scriptural or ḥadīth text imposes a ḥadd punishment of eighty lashes. and whoever gets drunk talks nonsensically (hadhā).29 ʿUmar increased the number to eighty sometime after he assumed leadership because he noticed that drinking was becoming a more regular phenomenon.27 By insisting on the text to resolve the debate. Shāfiʿī was following his general methodological framework of insisting on textualism to determine the substantive law before reaching issues of ḥudūd avoidance on the basis of evidentiary doubt. Shāfiʿī’s treatment of it suggests that he saw this move as a legitimate basis for the law.”30 In essence. 7:363-66. 28 29 For Abū Ḥanīfa’s response. More broadly. and whoever speaks so makes defamatory remarks (iftarā) …. he legitimated Companion                                                                   27 See Shāfiʿī. 438-49. When Abū Bakr assumed leadership over the community following the Prophet’s death. he followed the precedent of imposing 40 lashes. 30 See Shāfiʿī. one reported event happened after the Battle of Ḥunayn. he was unaware of the precise rules on wine drinking and therefore had to ask those who were at Ḥunayn about what transpired. See Shāfiʿī.creates ḥadd liability. When they informed him. The early traditions report that the Prophet announced a sentence of forty lashes. 7:447. Sunnī sources observe that ʿUmar arrived at this decision through consultation with ʿAlī. al-Walīd to be flogged for drinking. the serious harm that he perceived to the public sphere—with apparently increased incidents of wine-drinking—led ʿUmar to double the punishment. which likely follows a common practice of inserting ʿAli in controversial decisions polemically to serve sectarian purposes. That is.” 5-39. For example. Umm. The change stuck. see the next section. when the Prophet sentenced Khālid b. whom he accused of arbitrarily allowing certain types of intoxicants to accommodate an Iraqi penchant for drinking. 202    . Shāfiʿī was taking aim at Abū Ḥanīfa and the other Iraqi jurists. Umm.28 As for the punishment for intoxication. he reasoned that “whoever drinks gets drunk. For further discussion and a theory on how and why this came to be. 7:447. though incidents of actual imposition were infrequent and not well known.

his textualist stance led him to take a stand against ḥudūd avoidance on questions of substantive law.32 We see here how this concern pervades his criminal law jurisprudence. Shāfiʿī paid less attention to the problem of developing new principles of law than to the problem of how to demonstrate that all the principles and rules that existed in his time where derived from recognized Islamic sources. Early Islamic Legal History. See ʿAbd al-Majīd. consider the way his treatment diverges from that of the Iraqi jurists concerning multiple thefts.”). though Shāfiʿī accepted the ḥudūd maxim in evidentiary matters (as we will see). 359-61.31 In sum. regardless of pragmatic or other considerations. but not for Ẓāhirīs. 203    32 .e. Shāfiʿī’s concerns—as a way of alleviating moral anxieties—were with providing methodological clarity and consistency in the definition of law. Shamsy. as has been well-argued in other contexts. Iraqi Ḥanafīs maintain that ḥadd penalties are due upon commission of a first and second theft (i. Thus. Against Lenience One element of Shāfiʿī’s stance against substantive ḥudūd avoidance was manifested in his taking aim at what he perceived to be a Ḥanafī tendency toward lenience. For recent studies. see Lowry. where Shāfiʿī emphasized that the ḥadd sanction is to be imposed according to the dictates of authentic traditions. he aims to eliminate or preempt it through identifying and appealing to authentic ḥadīth texts.” 43 (“Shāfiʿī’s method of jurisprudence was concerned less with developing the law that existed in his age than with systematizing a body of law that had already reached a high degree of growth.policies such as this one. who regarded only prophetic statements as authoritative. considering reports of them to be “text” as authoritative as prophetic or divine legislation. “Introduction.. 2. Ittijāhāt. The debate arose in the context of recidivists. in the Risāla. To return to the example of stealing. amputation of                                                                   31 ʿAbd al-Majīd notes that this held true for the group of ahl al-ḥadīth (traditionists) generally and for Shāfiʿī. In some respects then. See also Khadduri. From Tradition to Law. rather than focusing on doubt.

34 they derive the rule about amputating the left foot by analogy to the punishment due to highway robbers. 6010-11 (analogizing to brigandage). Qudūrī. 5:33 (“Those who wage war against God and His messenger and strive to make mischief in the land is this—that they should be killed or crucified or their hands and feet should be cut off on opposite sides or they should be banished from the land …: innamā jazāʾu ʾlladhīna yuḥāribūna ʾllāha warasūlahu wa-yasʿawna fī ʾl-arḍi fasādan an-yuqattalū aw yuṣallabū aw tuqaṭṭaʿa aydīhim wa-arjuluhum min khilāfin aw yanfaw min al-arḍ … . which jurists took to cover acts of theft committed in the course of highway robbery. cf. but merely says “that hands and feet [can be] amputated from opposite sides. Tajrīd. 7:329 (ḥubisa wa-ʿuzzira). Though the verse does not specify which hand or foot. terms for discretionary punishment (taʿzīr.38 Reportedly. Rebellion and Violence. jurists understood it to refer to the right hand and left foot—perhaps because they had in mind the traditions’ specification of the right hand for theft. The latter frequently applied harsher punishments and in Ottoman administrative terminology. but not thereafter. Shāfiʿī. The Qurʾān specifies certain punishments for acts of highway robbery. 11:6007. he would be unable to walk or make a living. they point to several traditions in which ʿAlī. 35 36 Shāfiʿī.37 For further support. amongst others. See Qudūrī. But this was not always or universally the case. one of them is crossamputation of a hand and a foot. 204  37 38   . the offender is to be imprisoned and given a (lesser) punishment at the discretion of the judge. 11:6004 (noting agreement that aydiyahumā means aymānihimā. Tajrīd. 5:33 (aw tuqaṭṭaʿa aydīhim wa-arjuluhum min khilāf).the right hand then the left foot). siyāsa) could themselves mean the death penalty. the Qurʾānic verse also tolerates the opposite—the left hand and right foot—as it does not specify which hand and foot.”). For juristic interpretations. Tajrīd. for example. 11:6010-11.33 They arrived at this conclusion according to their reading of the Qurʾānic verse on theft.” See Qurʾān. repeat amputations for repeat offenses would lead to personal ruin. ʿAlī said “I (would) feel guilty before God if I left (a thief) without the hands                                                                   33 Notably.35 Thereafter. which only mentions “hands” and which they understood to mean the right hand.36 If any other limbs were cut. 34 See Qudūrī. cf. and that Ibn Masʿūd’s variant reading includes the latter term). following the general trend of requiring discretionary punishments under the jurisdiction of Islamic law to be lesser than the ḥadd sanction. 7:332 (li-ʿillat al-istihlāk maʿa khilāf al-sunna waʾl-athar). Qudūrī. Umm. and they reject traditions stating otherwise. See Qurʾān. Tajrīd. see generally Abou El Fadl. they argue. This at least seems to have been the case at the time that these authors wrote. ruled that there was no ḥadd liability after the second offense. 11:6010-11. and it rarely applied to punishments imposed under the jurisdiction of the political authorities. Umm. Ḥanafīs maintain.

769/1367). 385/995). and accompanying citations to text. Muḥammad al-Zuhrī al-Ghamrāwī. But to Shāfiʿī. ʿAbd Allāh b. Ṭaḥāwī concluded that this ḥadīth had no authoritative basis (lā aṣl lah). 7:331. 494 and accompanying text by Ibn al-Naqīb (mentioning only the right hand and left foot). For a fuller treatment. 11:6011) (reporting that the Prophet said about the thief: in sariqa fa-ʾqṭaʿū yadah. 1996). see Chapter 2. the third. Sunan).ʿUmdat al-sālik wa-ʿuddat al-nāsik (Damascus: Dār al-Ṭibāʿa. Anwār al-masālik Sharḥ ʿUmdat al-sālik. As Qudūrī notes. See Dāraquṭnī. cf. Each time a thief steals. Appendix. atextual arguments into their reasoning. 458/1066). 3:181. 205    42 . even if those arguments were acceptable. Shāfiʿī cites an early precedent in which Abū Bakr ordered the amputation of the left hand of a thief whose hand and foot had been cut off. 235/849). and pragmatic concerns justified the Ḥanafī position. The first time. For support. Umm. Dāraquṭnī (d. Shāfiʿī attacked Ḥanafīs for relying on rational-pragmatic arguments and then attempted to demonstrate that. and the fourth. 341-51 (citing ḥadīths found in Ibn Abī Shayba (d. and Bayhaqī (d. he or she can be sentenced to amputation of one of his or her which he eats or feet by which he walks. the left hand.40 According to Shāfiʿī. See Shāfiʿī. as it is uniformly questioned by all of the traditionists. it is the hand. the left foot. If the thief continues to steal. who reportedly were unable to trace its source (kull man laqaynāh min ḥuffāẓ al-ḥadīth yunkirūnah wa-yadhkurūna annahum lam yajidū lah aṣlan). on the margins of Ibn al-Naqīb (d. 7:327. were to receive the same punishments as first-time offenders. Tajrīd. Umm. Cf. they                                                                   39 Shāfiʿī. Case 11. Sunan. if not more—subject only to the expansion and limitations of the traditions. Maḥmūd al-Mawṣilī. Recidivists. 292 (cited in Qudūrī.41 and there are other traditions where the Prophet reportedly commanded as much. no. Sunan. the left foot. the Iraqi jurists got it wrong because they did not rely on authentic texts and they folded pragmatic. the second. he will be punished accordingly at the discretion of the judge (taʿzīr).”39 This combination of traditions. 40 41 For discussion. he believed. that position seemed to be precisely the type of balking at severity that Ibn Masʿūd (following the Prophet) rejected in the Case of the Drunken Orphan. rational arguments. thumma in sariqa fa-ʾqtaʿū rijlah thumma in sariqa fa-ʾqṭaʿū yadah thumma in sariqa fa-ʾqṭaʿū rijlah). al-Ikhtiyār li-taʿlīl al-Mukhtār ([Egypt]: Maktabat wa-Maṭbaʿat Muṣṭafā al-Bābī. [1951]).42 Thus. Muṣannaf.

206    . The governing principle of criminal law for Shāfiʿī was that text controls and it specifies that repeat                                                                   43 See Shāfiʿī. 44 45 46 See ibid. causing needless pain) and that he shaved off the fingertips of minors who stole (though there is no ḥadd liability for minors).45 Would Ḥanafīs make the same argument about the death penalty? Is not that the “utmost ‘ruin’” (aqṣā ghāyat al-istihlāk) that a person could face? Would they then apply the ḥudūd maxim indiscriminately to practice ḥudūd avoidance out of fear for the capital offender’s personal ruin (wa-daraʾū ʾl-ḥudūd hāhunā li-ʿillat al-istihlāk)?!46 The not-so-subtle subtext is that judicial subservience to the law as stated in the texts should be paramount. he observes. he says. they adopt reports that ʿAlī ordered the foot to be amputated in the middle (rather than at the ankle. 7:330 (ghayr thābit. mustankar).were inconsistent with other norms and conclusions (which is why they are not acceptable). Shāfiʿī retorts mockingly against the Ḥanafī point that excessive severity would “ruin” the offender. For example. “despicable. See ibid. because they are meant to deter people from committing crimes in the first place and to serve as spiritual expiation for the offenders. Ibid. Criminal sanctions are harsh. Umm. Ḥanafīs regularly attribute quite a few traditions to ʿAlī that are generally “unreliable.44 Further.” and indeed.”43 In contrast to the report invoked above that shows ʿAlī avoiding the ḥadd penalty for third-time offenders. despite the harsh consequences for recidivists.

and it is there that the ḥudūd maxim came in for Shāfiʿī. Evidentiary matters often fell beyond the text.48 * * * So far. Umm. on zinā.                                                                   47 Ibid. intoxication. 7:394-95 (that an adulteress is to receive a penalty of death-by-stoning even when having committed the offense with a servant or laborer (ʿasīf)). a reliable report indicates that Prophetic practice abrogated the rule requiring the death penalty after the third offense. Shāfiʿī says.47 An orientation toward lenience therefore was for him not a valid reason for avoiding ḥudūd sanctions. etc. as a permanent dispensation or suspension of the original rule (rukhṣa): waʾlqatl mansūkh bi-hādhā ʾl-ḥadīth wa-ghayrih wa-hādhā mimmā lā ʾkhtilāf fīh bayn aḥad min ahl al-ʿilm ʿAlīmtuh). See Shāfiʿī. Ṣafwān’s Case was just one example. Shāfiʿī added a timeliness element to his initial text-based tripartite definition. 207    49 50 . On its basis. after laying out the elements of each of the other crimes and then considering factors that do not arise in the simple statements of definition. Rarely. note 31. he did not always insist on ḥadd liability and ḥadd imposition. 48 An exception concerns the ḥadd for drunkenness for which. which—as noted— constituted foundational “texts” for Shāfiʿī. Shāfiʿī steadily adds certain across-the-board elements intended to more precisely articulate when the law requires ḥudūd imposition. 6:330-36 (observing that non-Muslims are subject to the Islamic ḥudūd laws rather than their own laws). This worked for defining criminal elements added by early precedents of the Prophet and his Companions contained in ḥadīths. In fact. the early cases as recounted in the last chapter were themselves normative texts as ḥadīths that jurists used to fill out the lacunae between the scriptural text and real-life circumstances. 7:363-65 (noting a Prophetic saying imposing the rule and a subsequent practice wherein he did not apply the death penalty. did the facts fit the textual definitions so neatly. 7:330-31. this approach pervades all of the areas of criminal law that Shāfiʿī discussed as he laid out the rules for zinā. In the same way that he argued for theft.49 In fact. See above.. For example. however.50 Yet. Umm. and accompanying text.offenses require repeat punishments. the general thrust of Shāfiʿī’s criminal law jurisprudence has been to emphasize ḥudūd imposition based on the elements of the crime gleaned from texts and earlier precedents that he deemed controlling. see Shāfiʿī.

208    55 54 53 . neither will receive the ḥadd as they have now both been coerced.B. Ḥanafīs interpret the so-called coerced man’s arousal to indicate some measure of voluntariness.. Shāfiʿī reportedly held that. reasoning that true coercion brings about deep-seated fear. the ḥadd sanction is imposed on him but not on the woman.                                                                   51 Ibid.”54 Put differently. A modern criminal law analyst might observe that. and jahāla: fa-in iddaʿā ʾl-jahāla bi-anna lahā zawj.53 “If a man rapes a woman [lit. It is unclear whether he bases this requirement on ḥadīth texts. who forces a man to rape a woman. for the rape victim.. 11:5896.” Shāfiʿī is referring to rape or coerced sex. in-qālat balaghanī mawt zawjī wa-ʿtadadtu thumma nakaḥtuh). Thus. which would prevent the arousal necessary for the rape. if attempting to pursue a consistent methodology of legal interpretation according to textual bases.”52 In speaking of “coercion. He well might. Mens Rea: Subjective Indicia Shāfiʿī addressed instances of ḥadd avoidance most explicitly in his discussion of “factors that merit ḥudūd avoidance for zinā and [factors] that do not. as he does not mention textual bases here. 7:395. The exception is where the sulṭān coerces the act.. Shāfiʿī. Tajrīd. See Qudūrī.: forces her]. there was never any ḥadd liability to be avoided in the first place because the criminal elements—including voluntariness—were not completed. specified voluntariness as another central element of criminal liability for zinā. Case 14 and sources cited therein). The rape could happen by coercion of a third party. Yet Shāfiʿī’s treatment was typical of other early jurists’ approach to coercion—which they regarded as cause for evidentiary doubt (shubha). but it is impossible to tell for sure. because she has been coerced (mustakraha). Umm. 7:395 (ikrāh: idhā ʾstakrah al-rajul al-marʾa. Shāfiʿī discussed coercion as a cause for ḥadd avoidance. This is contrary to the general Ḥanafī position because of disputed facts.”51 The main factors listed in this section are “coercion” and “ignorance. as we will see. 7:394 (mā yudraʾ fīh al-ḥadd fī-ʾl-zinā wa-mā lā yudraʾ). and in so doing. 52 Ibid. Ḥudūd Avoidance 1. if a man is forced to rape a woman.55 To differing degrees. in which case ḥadd liability is removed because the coerced man is seen to have no recourse for appeal regardless of his arousal. such as the Case of ʿUmar and the Mysteriously Pregnant Woman (discussed in Chapter 2. see Appendix. 7:395 (noting that the perpetrator is also fined a sum commensurate with customary dower amounts (mahr mithl) along with a fine for any injuries (arsh) for a free woman or whatever decrease in value has been occasioned by the loss of virginity for a slavewoman (naqṣ min thamanihā)). Ibid.

ʿUmar and Bint Shayba b. ʿUthmān refused to request to attend the wedding. Jubayr. Umm (1961).57 especially given frequent marriages and remarriages that produced interweaving family ties common in early Islamic societies. that each spouse simply did not know that the other was not a valid marriage partner.. two witnesses. Islamic family law bars certain classes of people from marrying one another—among them. 5:78-79 (ḥadīth: lā yankiḥ al-maḥram wa-lā yunkaḥ wa-lā yukhṭab). 60-63.g. Shāfiʿī continued in this vein when discussing criminal intent or knowledge. 76-77 (against parents agreeing to marry daughters through the pre-Islamic practice of trading daughters in marriage (shighār).g... Shāfiʿī cites an incident wherein ʿAbd Allāh b. saying that his father (the third caliph). e. A Social History of the ʿAlīd Family. Shāfiʿī held that there was no ḥadd liability for a couple that marries but does not know that the marriage itself is invalid due to one of the legal impediments laid out in the detailed family law rules. Shāfiʿī lists others. See ibid. or some other legal status that made them ineligible for marriage (e. e.56 These rules and others governing valid marriage partners are complex.” he actually meant an amalgam of factors related to mistake of fact. the wife could have mistakenly thought that she was                                                                   56 That is. ʿUmar wanted to conclude a marriage between Ṭalḥa b. 57 In addition to the rule against marrying close family members.58 It is then perhaps unreasonable to expect everyone to know the specifics of all the marital rules in detail. See Shāfiʿī. 23 (against marriage without a guardian. not all of which are followed by other legal schools. foster relations. See. closely related family members.. 2007). 209    58 .g. and criminal intent. Nevertheless. 5:79-81 (against marriages designed to satisfy the rule against a fourth remarriage after three consecutive divorces from the same person without remarrying someone else beforehand (nikāḥ muḥallil) and temporary marriages (nikāḥ al-mutʿa)). for example. which he adduces through a discussion of marriage. Between the Acts: The Ḥijāzī Elite and the Internal Politics of the Umayyad and Early ʿAbbāsid Empires (unpublished PhD dissertation.they folded evidentiary matters into rules of the doctrine of ḥudūd avoidance. Princeton University. ibid. or dower respectively). women who are already married). in his efforts to provide textual support for each rule. mistake of law.. See. This rule was so central to the mores and practices of the Muslim community by Shāfiʿī’s time that it needed no citation. Alternatively. Bernheimer. Accordingly. 5:23-27 (listing categories of close relatives prohibited from marrying one another). Shāfiʿī posits that it could be the case. Asad Ahmed. 12-13. Abān b. and discussed the doctrine under headings relating to evidence. By “ignorance. had told him that the Prophet had explicitly prohibited such unions. 22. family members who are “prohibited” (maḥram) through blood relations. even though they were closely related.

Shāfiʿī added an element of intentionality. and having tried to follow the proper procedures to remarry. the ḥudūd maxim applies: judges are to avoid imposing the ḥadd sanction if the couple swears an oath that they did not knowingly violate the law. if the man says that he knew the woman was still in her divorce waiting period but married her anyway.61 For example. Shāfiʿī generally held that there was no ḥadd                                                                   59 Shāfiʿī. Loyalty and Leadership. Umm. see Mottahedeh. above note 52. 210    62 . On the symbolic importance of oaths that helps explains their importance in procedural matters.60 But if the couple admits to knowing both the facts (that the woman was closely related or still in the midst of her divorce waiting period from a previous marriage) and the law (that marriage in such circumstances is barred). 60 Ibid.59 In such instances. both incur ḥadd liability for going forward with the marriage despite knowing of its illegality.62 In this way. Ibid. Shāfiʿī spells out a knowledge requirement alongside the voluntariness requirement articulated above. and passim. 61 Shāfiʿī. 46. perhaps away at battle. Umm. Shāfiʿī says. if the couple marries but is arrested on zinā charges. which for him turned not just on the understood effect but also the intention behind offensive or lineage-denying statements. or if the woman says that she knew that she was still technically married to someone else. wa-kadhālik in qālat hiya dhālika … [aw] in qālat qad ʿalimtu annī dhāt zawj wa-lā yaḥull lī ʾlnikāḥ uqīma ʿalayhā ʾl-ḥadd). 7:392-93. Finally. cf.eligible to remarry—having received news that her pervious husband had died. at least for defamation (qadhf). then the ḥadd sanction is due. 7:393 (wa-law anna rajulan ukhidha maʿa ʾmraʾa fa-jāʾa bi-bayyina annahu nakaḥahā [sic = jāʾa aḥad bi-bayyina or perhaps uqīma ʿalayhi al-bayyina] wa-qāla nakaḥtuhā wa-anā aʿlam anna lahā zawjan aw annahā fī ʿiddatin min zawj aw annahā dhāt maḥram wa-anā aʿlām annahā muḥarrama fī hādhihi ʾl-ḥāl uqīma ʿalayh ḥadd al-zānī. For allegedly defamatory statements that are only implicitly offensive (taʿrīḍ). 61. (fa-in iddaʿā ʾl-jahāla … uḥlif wa-duriʾa ʿanh al-ḥadd).

” although his parents were not. not to deny paternity of his Arab father). 66 65 Ibid. and that “announcing the sentence is as good as carrying it out. 211    . he did not mention shubha specifically. knowledge. defamation (the traditional ḥudūd crimes). the judge is to ask the accused to swear an oath that he did not intend for his statement to be taken to deny the other person’s lineage. Shāfiʿī implicitly folds these mens rea requirements into his idea of criminal liability for the other types of crimes—theft. yet. despite claims of some jurists that the end of a criminal trial is final. as well as apostasy and highway robbery (qaṭʿ al-ṭarīq) (which he also considers ḥudūd crimes) and qiṣāṣ (murder and personal injury)..65 In Shāfiʿī’s treatment here. he seems to have had the ḥudūd maxim in mind. and then swears that he only meant to refer to the other person geographical place of origin. His language recalls the phrasing of the maxim and he is concerned overall with instances of ḥadd avoidance for evidentiary deficiencies. Mens rea becomes significant as later jurists develop the concept into a major component of the doctrine of shubha under the rubric of the ḥudūd maxim—once they have transformed it from a negative doctrine to a positive one.63 When in doubt. In fact.”66 This                                                                   63 Muzanī. 7:327. by insisting on elements of voluntariness. Mukhtaṣar. 64 Ibid. including mens rea. were completed at the time of the offense.64 Taken together. 2. Shāfiʿī has added a thick concept of mens rea to the requirements for criminal liability. 9:277. (giving the example of someone who calls an Arab a “Nabatean. he maintains that ḥadd liability can be removed even after a judge renders a guilty verdict and begins to impose the sentence. 6:131 (khurūj ḥukm al-ḥākim qabla maḍāʾ al-ḥadd ka-maḍāʾ al-ḥadd). Shāfiʿī specified that it is not that the ḥadd penalty will always apply whenever it seems that a crime has taken place and the criminal elements. and that he had a wholly lawful purpose. wine-drinking. Proving the Elements Finally. Umm. and intent. Shāfiʿī.liability unless the person making the statement intended to defame.

“Gender and Legal Authority: An Examination of Early Juristic Opposition to Women's Ḥadīth Transmission. Exceptions are in cases of theft. in the presence of the victim. and place of the act. in this case the accuser produces the single witness and swears an oath (ḥilf) and/or two women can testify (in place of a second male). a single witness plus an oath (yamīn) is insufficient to establish the crime.70 women’s testimony is typically inadmissible in ḥudūd proceedings. As a general matter. now Asma Sayeed. for the common law and continental context. Umm. the accused is to pay back the value of the good on the day it was stolen. In cases of zinā. Shāfiʿī requires only a single confession. Crime and Punishment. Even then. when only a single (male) witness is available and the stolen item is present. Establishing ḥadd liability for most crimes requires a confession or two reliable witnesses to the crime. both offering a description that is detailed and identical. Unlike most other jurists who require multiple confessions. Umm. there are four parties to criminal cases: the accuser. 387-88. drawing on Māʿiz’s case and analogizing to the four witness requirement.” Islamic Law and Society 16. Umm. but no amputation is required. witnesses. 391 (particularly for theft or highway robbery). “like an eyeliner stick going into a kohl container: annahum raʾaw dhālika minh yudkhal fī dhālika minhā dukhūl al-mirwad fī ʾl-mikḥala”). the accuser brings a claim against the accused before a judge.68 In contrast to commercial law contexts. 2 (2009): 115-50. see Whitman. One Man: Knowledge. the testimony is considered defective. particularly in the context of zinā—where the penalty can be death. 389. Zinā proceedings require multiple confessions or the testimony of four witnesses to the actual act of penetration who give uniform testimony as to the time. and a judge. Cf..” International Journal of Middle East Studies 29 (1997): 185. Ibid.discussion takes us directly to criminal sessions where judges are applying criminal law rules that contain heightened evidentiary procedures.69 Likewise. liability for the punishments of flogging and stoning alike are removed with such defective testimony. “Two Women. 7:387. unlike other non-criminal law contexts where women can testify (two in place of one man). If the crime is established through these means. Shāfiʿī. Reasonable Doubt. as the well-known ḥadīth puts it. 68 Shāfiʿī. 96. Power and Gender in Medieval Sunni Legal Thought. The other major exception for allowing women’s testimony in ḥudūd 212    71 . Shāfiʿī.71                                                                   67 See Peters. manner. 7:388 (lā yajūz fī ʾl-ḥudūd shahādat al-nisāʾ). 7:391 (specifying that the witnesses must see the act. the accused. 69 70 For an insightful article addressing the development and socio-political background of evidentiary disparities between men and women’s testimony.67 To initiate a criminal proceeding. see Mohammad Fadel. The same was generally true in the medieval period in other polities.

and he took                                                                                                                                                                                                 matters involves issues considered unique to women’s areas of competence. those have been clarified by tradition. he does not use the term to refer to circumstances of textual or interpretive ambiguity. Specifically. Umm. 390 (specifying that punishments of flogging or stoning do not apply to those who retract confessions of zinā even in the midst of carrying out the sentences).. 72 Shāfiʿī. he said in no uncertain terms that judges should not regard marriages of disputed validity to be instances of shubha by which the ḥadd punishment for invalid marriages should be avoided. His act.72 As well. 7:327. See. Shāfiʿī has mentioned shubha. Ibid. “I drank an intoxicant. ibid. Shāfiʿī says. deeming the same disputed marriages as legitimate bases for ḥadd-averting shubha.74 Here. or drinking wine. 213    . 7:327 (shubhatih bih). as later jurists—even within his own school—would do.For Shāfiʿī. 7:361-2 (qāla ʾl-Shāfiʿī: wa-qāla minhum qāʾil fa-idhā ḥakamta baynahum abṭalta ʾl-nikāḥ bi-lā walī wa-lā shuhūd wa-huwa jāʾiz baynahum? qultu: naʾam. He does not mean doubt about what the criminal elements are. etc.” or admits to drinking from a container from which he knew others had drunk and had become intoxicated. committing zinā. as noted succinctly in Shāfiʿī works of legal maxims. For a discussion of the categories and their social significance see Fadel. If there is some doubt about whether the substance was intoxicating (fa-ammā idhā ghāba maʿnāh). he notes that punishment may also be due if a person admits to drinking wine. Shāfiʿī holds that judges should not impose the ḥadd sanction on anyone who retracts a confession to “stealing. 7:446. the law was clear. 6:388 (specifying that the thief is to pay the value of the stolen item but that he is not subject to amputation). For further discussion. he says that there is no ḥadd liability unless the drunken person confesses to drinking an intoxicant or if witnesses testify against him and can establish that he did so knowingly.” 185ff. any deficiency in meeting these evidentiary burdens creates a measure of doubt as to whether the criminal elements have been established. cf. For instance. finally in the evidentiary context. although Shāfiʿī maintains that the law forbids drinking any intoxicant. then neither ḥadd punishment nor discretionary punishment (taʿzīr) is due. childbirth. Ashbāh. The context gives us an idea of what he means by the term. Thus. is the introduction of doubt (shubha) of the type that is ḥadd-averting.75 for him.. When it comes to drinking. Ibid.. “Two Women.g.”73 The reason. One Man. was “either a ḥadd crime or [the substance was] permissible” and punishment is only due with certain evidence (innamā yuʿāqab al-nās ʿalā ʾl-yaqīn). 237. See ibid. 74 75 73 Ibid. such as issues of gender.. saying..). for example. Later Shāfiʿīs would reverse course completely. e. Shāfiʿī explains. see Chapter 4. Suyūṭī.

note 72). where Shāfiʿī                                                                   76 Ibid.pains to provide the bases for his opinions. then neither a ḥadd sanction nor a discretionary punishment (taʿzīr) is due. These latter instances are to be distinguished from the other cases.77 As noted. Rather. that is. Stealing from a location that has not been secured. he concluded. and other situations where the substantive and mens rea elements are not met do not constitute ḥadd violations. 77 Ibid. For Shāfiʿī. when they were considering or directing judges to consider whether ḥadd liability is due. “if there is uncertainty about whether the law was violated. (here: whether the substance met the definition of the criminal element requiring intoxication for drunkenness (fa-ammā idhā ghāba maʿnāh)). as he has defined them on the basis of authentic texts. From another perspective. or debate—used by other schools as a backdoor to ḥudūd avoidance. and other criminal acts justified by appeal to foundational “texts” are prohibited and constitute ḥadd violations. and on that score. marrying a close relative unwittingly. In other words. there could be no ḥadd liability because basic ḥadd elements for a completed crime would not have been met without doubt. instances of ḥudūd avoidance based on a failure to complete any of the criminal elements indicate in one way the notion that there was no ḥadd liability in the first place. mistake. Shāfiʿī saw shubha as doubt about whether the known elements of the crime. is “either a ḥadd crime or [it is a] permissible [act]. Thus. he saw no room for interpretation. have been completed.” Punishment is only due for violations of ḥadd crimes on the basis of absolutely certain evidence. 7:446 (innamā yuʿāqab al-nās ʿalā ʾl-yaqīn) (quoted above. 214    .”76 A given act. knowingly marrying a close relative. Shāfiʿī’s treatment demonstrated how Muslim jurists refer to such instances as ḥudūd avoidance or ḥadd-averting shubha.. above. stealing from a secure location. drinking intoxicants.

such as instances of trying to change the facts after the verdict as in Ṣafwān’s Case. he held that it enters at the stage of proof. Shāfiʿī arguably laid foundations for expanding the definition and scope of both. the only ḥadd-averting shubha then was some deficiency in the evidence required to establish the textuallydefined crimes. Early Shāfiʿī Shubha The thrust of Shāfiʿī’s jurisprudence. or of adopting a stance of lenience as the defendant argued in the Case of the Drunken Orphan or as Shāfiʿī accused the Ḥanafīs of doing on the issue of repeat offenders. Shāfiʿī contemplated the propriety of ḥudūd avoidance. was about certainty. For him.specified that an offender had incurred ḥadd liability at the time of the crime. in those instances. He aimed at getting the rules of ḥadd liability right and declared the mandatoriness of ḥudūd imposition whenever acts of wrongdoing met the definitional elements of crimes contained within certain texts. There. to void ḥadd liability in such cases is a narrow reading of a ḥadīth-text outlining ʿUmar’s ruling that 215    . not doubt. C. For him. issues of ḥudūd avoidance typically arose in evidentiary matters when it came to proving the crime or assigning culpability. For example. ḥadd liability would not always be removed. when considering cases of theft by fraud (for which there is properly no ḥadd liability because of the missing element of a taking from a secure location). Despite his apparently procedural and narrow stance toward shubha and ḥudūd avoidance. For Shāfiʿī. the type of doubt constituting ḥadd-averting shubha typically arose only once a judge started interrogating the circumstances surrounding the act and inquired as to whether the elements were in fact completed. including his criminal jurisprudence. which is the province of the ḥudūd maxim and ḥudūd avoidance.

Thābit said: laysa fī khalasa qaṭʿ). * * * A similar approach to ḥudūd imposition and avoidance endured amongst Shāfiʿī’s followers for some time. any situation where access to property is shared or where locations are not or cannot fully be secured should translate into a rule of ḥudūd non-liability or avoidance. He acknowledged a broader reading as well. One relevant comment concerns questions of ḥadd liability in instances of spousal theft from one another. so far as we can tell. 7:782 (noting that the same applies to khalasa. Muzanī points out that Shāfiʿī had earlier                                                                   78 Ibid. that he deemed there to be no ḥadd liability resulted from his reasoning that one of the definitional elements of the crime had not been met. commenting that the rule should probably be extended “out of precaution” (ʿalā ʾl-iḥtiyāṭ) to other cases: spouses who take each other’s property.78 Yet his broad reading was later seized upon and transformed into an instance of shubha and ḥudūd avoidance that would crop up throughout Islamic criminal law in more developed doubt jurisprudence in the Shāfiʿī school. In short. the Umm.ḥadd liability applies only to servants who take from their masters. citing a case wherein Zayd b.” but by fraudulent means (khiyāna). or people who borrow property held in security (wadīʿa) but then deny that it belonged to the original owner. which Shāfiʿī had listed as a case of fraud for which ḥadd liability typically should be removed. children who take their parents’ property and vice-versa. anyone who takes property from someone else living in the same house. was that “the goods are not taken from a secure location. To be sure.. 264/878) offers minimal commentary in an abridgement of Shāfiʿī’s major legal treatise. His follower Muzanī (d. The thread common to all of these situations. Shāfiʿī maintained. 216    .

Ibn Ḥajar al-Haytamī. 5:442-5. e. 4:118-21 (citing the ḥudūd maxim as a prophetic ḥadīth. Nawawī. biʾl-shubahāt and . But the jurisprudential effect is in fact to follow Shāfiʿī’s trend of insisting on ḥadd liability in areas of substantive criminal law.. see. 450/1058) over two centuries after the school “founder’s” death. 385. 6:443-4 (quoting the standard formula of the maxim and attributing it to the Prophet as a ḥadīth). Ḥāshiya. idem. as recorded elsewhere. 236-38.g. the ḥudūd maxim’s scope expanded radically in Shāfiʿism. Majmūʿ. 450/1058). Ḥilyat al-ʿulamāʾ.. Shīrāzī... becoming more and more central to the jurisprudence of the Shāfiʿī school. Qawāʿid. who transmits the Umm or for many of the Shāfiʿīs before Māwardī (d. ʿAzīz. following Shāfiʿī’s narrow reading of the reach of the ḥudūd maxim.held. 8:7-15. Bājūrī. 3:206. al-Aḥkām al-sulṭāniyya. mā ʾstaṭaʿtum). 18:375. [All discussed in Chapter 1.81 This expanded jurisprudence is covered in the next chapter. The maxim also came to feature as the central principle of criminal law in collections of legal maxims beginning in the 7th/13th century.g. 9:279 (hādhā aqyas ʿindī) (citing Kitāb ikhtilāf Abī Ḥanīfa waʾl-Awzāʿī).] For Shāfiʿī treatises on maxims including the ḥudūd maxim. Mughnī almuḥtāj.79 The immediate effect of that statement is to further restrict the instances in which ḥadd liability can be voided. Shirbīnī. 145). For further applications. Eventually. 254 (attributing the maxim to the Prophet and folding it into his treatise on political theory).g.                                                                   79 Muzanī. 119-20). Tabṣira. We have no record of divergence form his student Rabīʿ. Ashbāh. 2:383-90 ([fī] ʾl-Qāʿida fī ʾlshubahāt al-dāriʾa liʾl-ḥudūd: “on the maxim regarding ḥudūd-averting doubts or ambiguities”). 80 See Māwardī. 7:306-13. Wasīṭ. Minhāj. that spouses can be ḥadd-liable for stealing from each other if each partner has attempted to secure their belongings. Ghazālī. where the texts dictate the punishment. idem. 217    81 .80 The first noticeable expansion of the principle began with Māwardī (d. e. Ibn ʿAbd al-Salām. on p. Suyūṭī. Mukhtaṣar. but to allow for the possibility of ḥudūd avoidance in criminal procedure and evidence.. It appears prominently in fiqh works descendant from Shāfiʿī’s treatise Umm on substantive criminal law as well as in manuals of judicial procedure and political theory. e. al-Qaffāl alShāshī. see. 1:485 (indicating that the Prophet said both idraʾū ʾl-ḥudūd . on p.. 2:27980. notes 82-84 and accompanying text. e.g. 118. Tuḥfat al-muḥtāj... 11:144-50 (citing the ḥudūd maxim as a prophetic ḥadīth. and as a khabar ṣaḥīḥ on pp. Rawḍa. Rāfiʿī.

27-34.82 * * * We saw above that the Iraqi jurists. see Tsafrir. Khurāsān. Wilferd Madelung.. Shāfiʿī accused Abū Ḥanīfa of operating on the basis of unbridled and baseless personal opinion (raʾy). MA: Islamic Legal Studies Program at Harvard Law School. 83 84 See Chapter 2.g. recognized the ḥudūd maxim widely as a well-known criminal law principle. Early Ḥanafīs As intimated above.83 Theirs was an exceptional legal school in terms of public standing in that they early on enjoyed political power and state patronage under the early ʿAbbāsids. and elsewhere.. Ḥabīb) simply were more likely to touch upon issues of ḥudūd avoidance connected to high-status individuals                                                                   82 Khadduri. and Ḥanafīs in particular. as some well-connected jurists arguably invoked the ḥudūd maxim to privilege status hierarchies in contravention of the moral imperatives laid out in the legal texts that they themselves purported to follow along with most other jurists. It may be that some state-connected Ḥanafīs (e. the Mālikī jurist ʿAbd al-Malik b. Abū Ḥanīfa and his associates were some of Shāfiʿī’s prime targets in a campaign to bring order and clarity to the law through textualism. that is. Among other complaints. (1971): 32-39. 218    . 2004).III. if indeed they were based on any textual premise at all. he saw Abū Ḥanīfa as inventing principles of law that went far beyond the text. “Introduction. Abū Yūsuf) and others (e. Early Spread of Ḥanafism (Cambridge. Der Islam 59. Shāfiʿī’s forceful argument for centering law on authentic traditions was meant to sift through and resolve juristic differences about the law that he took to be rooted in the faulty interpretive premises of Abū Ḥanīfa and other jurists. 20-21.84 The political contexts in which they invoked the maxim were special too. For the background political context in which Ḥanafism formed and developed in Iraq. Section II. “The Early Murjiʾa in Khurāsān and Transoxania and the Spread of Ḥanafism.” 42-43.g.

it did not reveal the Ḥanafī jurisprudence of doubt inasmuch as the political context was separate from the juridical one. To shed light on normative Ḥanafī jurisprudence. and Reformed Malikis in al-Andalus. “When Lawful Violence Meets Doubt. Harvard University. we discuss norms of ḥudūd imposition versus avoidance in turn. Malikis. but focused on laying out the rules of ḥadd liability based on their own jurisprudential standards. Devolution. if                                                                   85 See Chapter 2. Ḥanafīs took a hard line in several cases where Shāfiʿī rules appear “lenient. early Ḥanafīs were not overly concerned with defining shubha as a category. the ḥadīth precedents relating to criminal law focused on norms of judicial subservience and moral anxieties against the political persuasions to the contrary. Rather. regardless. In fact. beginning with the Ḥanafī approach to rules of imposition. Mens rea: Objective Indicia Ḥanafīs would have objected to Shāfiʿī’s portrayal of them as lenient. the very fact that those cases were recorded means that they were sensational ones worthy of historical mention and thus were likely rare. Vogel. we must look at the legal treatises of the time directly—sometimes penned by the same jurists who were purportedly abusing the maxim politically. If they did.. MA: Islamic Legal Studies Program. like Shāfiʿī.” 229-33. at some odds with those of Shāfiʿī.85 All this notwithstanding. The Islamic School of Law: Evolution. eds. “Proto-Malikis. Fierro. For an analysis of the standing and institutionalization of the Mālikī madhhab in Andalusia under the Western Umayyads. 219    . 2005): 57-76. Ḥudūd Imposition 1. whatever political abuse of the ḥudūd maxim there may have been. A. see eadem. Rudolph Peters. and it is possible that they intended or saw no foul play.” that is. cf. In their legal treatises. As before.given their connections to political authorities. and Progress (Cambridge. the former was not based on and did not create ḥadīths laying out normative rules.” in Peri Bearman. Frank E. Section II. Rather. they were aware of and certainly recognized the ḥudūd maxim.

and they took arousal to be an indication of voluntariness. a. 230 (lā yutaṣawwar illā baʿd intishār al-āla wa-hādhā āyat al-ṭawʿ). it was as if the crime had been committed in the absence of any legitimate authority (imām) with jurisdiction over ḥudūd matters. the fear would overcome their will or ability to have sex. if the sulṭān was the one violating those laws. al-Jāmiʿ al-ṣaghīr (Karachi: Idārat al-Qurʾān waʾl-ʿUlūm al-Islāmiyya 1407/1987). 87 That                                                                   86 See Abū ʾl-Ḥasanāt al-Laknawī (d. Two examples will serve to demonstrate how. Ḥanafīs approached evidentiary matters with some manner of objective inquiry that serves to restrict instances of ḥudūd avoidance on evidentiary matters. Voluntariness: Sexual Coercion In cases of rape. For further discussion 220    87 . that the ḥadd is due whether the sulṭān or anyone else coerces acts of zinā). al-Nāfiʿ al-kabīr (sharḥ al-Jāmiʿ al-ṣaghīr). but subsequently adopted the latter. 1304/1887). Qudūrī. on the margins of Shaybānī. For if someone was truly fearful. as a matter of fact. 11:5896-97. but maintained that there may nevertheless be ḥadd liability against a male “victim” where a third party other than the ruler (sulṭān) has coerced a man to rape a woman. it is understood that Abū Ḥanīfa initially held the first opinion. they presumed. as the foremost authority ultimately responsible for implementing ḥudūd laws.lenience is taken to refer to instances where a school’s doctrine holds that there is no ḥadd liability. 230. having read a broad voluntariness requirement into the law. recall that Shāfiʿī held that there was never ḥadd liability against the victim of rape or the one coerced to rape another person. Shaybānī. coerced zinā is inconceivable without the arousal of the man supposedly being coerced. Tajrīd. That is. 11:596 (al-khawf yunāfī ʾl-shahwa waʾl-intishār fa-lammā wujida minh dalla ʿalā ʾkhtiyārih). Abū Ḥanīfa read in a voluntariness requirement as well. contrary to Shāfiʿī. Tajrīd. Ḥanafī commentators argued that. See Qudūrī.86 Abū Ḥanīfa held that there would be no ḥadd liability for coerced sex when the sulṭān did the coercing because of the power dynamics involved. al-Jāmiʿ al-ṣaghīr. There is some difference about whether Abū Ḥanīfa made an exception for coercion by the sulṭān (in which case ḥadd liability is voided) or not (that is.

147-48 (on rape). (al-mukhtār lā yuʾaththir fīh al-ikrāh). that level of fear creates the possibility that the act was fully involuntary.” Arab Law Quarterly 6. on the margins of Shaybānī. 11:5897 (citing the ḥudūd maxim in its standard form: idraʾū ʾl-ḥudūd biʾl-shubahāt. where ḥadd liability remains even though the ḥadd sanctions are not applied.88 That is. 230. it was excusable for the legal establishment not to impose the punishment because there was no one with the legitimate political authority to sanction it. He also notes that the rule changed from Abū Ḥanīfa’s time. “The Common and Islamic Law of Duress. to subsequent times—as early as the lifetimes of Abū Ḥanīfa’s two students (to which he attributes the second opinion ascribed to Abū Ḥanīfa himself)—up until Laknawī’s own lifetime. 90 91 89 88 See ibid. the act in question does become like committing zinā in nonMuslim lands (dār al-ḥarb). the fledgling empire saw multiple regional rulers (mutaghallib).89 The ḥadd sanction is not to be avoided. and referring to the potential category of shubha as shubhat al-Imām). when there was a single sulṭān. Ḥadd liability is not removed. Laknawī further justifies the rule on the bases that the coerced individual has no authority to which to appeal and that if a person feared for his life without any other option other than to obey the sulṭān even in committing a criminal act. See ibid. in a Muslim country without a legitimate ruler—as marked by upholding the ḥudūd laws—there could be no ḥadd liability for the effective leader’s coercion of ḥadd violations. he just disagreed as to whether coercion to rape could ever be truly involuntary. where jurists were agreed that there was no ḥadd liability. arousal) meant that the successful perpetrator of rape could not use coercion as an excuse. One later Ḥanafī scholar explained that there was no room for arguing that the ḥudūd maxim applies on the notion that there is some measure of shubha created by the sulṭān’s involvement. he says. Very quickly. Ibid. because “we do not acknowledge that there is any shubha. This was a dispute about                                                                                                                                                                                                 of this problem and coercion in Islamic law more generally. and the ḥadd imposition is thus mandatory.91 Abū Ḥanīfa agreed with Shāfiʿī then that voluntariness was a criminal element of rape and that coercion removed ḥadd liability generally.e. Qudūrī comes up with a creative compromise that softens the hard line of this broad rule of ḥudūd imposition... 221    . Qudūrī. (lā nusallim wujūd al-shubha). which meant that there was no clear sulṭān in charge of ḥudūd crimes and the rule of ḥadd avoidance should apply uniformly. Yet. Nāfiʿ. Tajrīd. he maintained.situation would be no different from committing zinā in non-Muslim territory (dār alḥarb). esp. 11:5896. see Khaled Abou El Fadl. See ibid.”90 the objective indications of voluntariness (i. Interestingly. 2 (1991): 121-59. Laknawī. al-Jāmiʿ al-ṣaghīr. In that sense.

see Abou El Fadl. the surprising element of political leadership in early Muslim lands was not that it shifted easily from one ruler to another given the vastness of the empire from an early period and the competing factional claims to leadership. who symbolized the unity of all Muslims. Muslim jurists held that rape is always a criminal act. it was rarely—if ever—the case that a single sulṭān exercised the type of strength and authority over the Muslim community that Abū Ḥanīfa’s ideal                                                                   92 Ibid. See Mottahedeh. and pressure that is not as compelling or constraining—“incomplete compulsion” where liability is not removed). the ideal was not reality. Abū Ḥanīfa and his disciples doubted that any man could be coerced to have sex inasmuch as they deemed arousal tantamount to voluntariness. beginning with ʿUthmān’s (d. but the frequency with which those in effective control over the community sought to maintain the fiction of a single caliph. See ibid. Loyalty and Leadership. 19. Not long after Abū Ḥanīfa’s death. undergirded his position in favor of ḥudūd imposition even in seeming cases of coercion involving sexual violence.92 This.. the person being coerced should choose to sacrifice themselves rather than the rape victim.facts. 11:5898 (min ṭabʿ al-Ādamī idhā khāfa zāla intishāruh fa-lammā lam yazul ʿalimnā annahu ghayr khāʾif wa-qawluhum annahu qad lā yazūl al-intishār maʿa ʾl-khawf amr nādir jarat al-ʿāda bi-khilāfih). ongoing rivalries and rebellions called into question rules based on an idea of a political order with a single sulṭān. 35/656) assassination after which various tribal and political factions struggled over who had the legitimate right to become reigning caliph. times had quickly changed to make the initial rule with the sulṭān as exception obsolete. Shaybānī. which vitiates voluntariness and where liability is removed.. “The Common and Islamic Law of Duress.” 127-29 (describing the Ḥanafī distinction between compelling duress.94 From as early as the First Civil War (35-40/656-661). Based on their understanding of human biology. Despite the universal Muslim ideal that recognized a single ruler at any given time. For them. Coerced sex would be a matter of the second category. 222    94 . rather than textual definitions devoid of physiological or political contexts. As one scholar has remarked. One suspects that another rationale is at play.93 * * * Abū Yūsuf. 148 note 112. 93 For further discussion. and subsequent Ḥanafīs came to change this rule to cover even cases where the sulṭān did the coercing.

Yet. but initially through a narrow lens that hinged it on types of political power and authority. and further observing that even during the time of Abū Ḥanīfa’s two principal disciples. heading a centralized state that appointed governors. “usurpers” claimed the type of coercive authority that a single sulṭān had enjoyed during Abū Ḥanīfa’s time). Ḥanafīs read a voluntariness requirement into the law. Abū Ḥanīfa differed in his definition of the knowledge requisite to trigger ḥadd liability. 230 (noting that the rule on imposing a ḥadd for coercion by the sulṭān is either one of imposition or avoidance based on differences in circumstances of time and place. ʿAbbāsid caliphs like Hārūn al-Rashīd were far more powerful than the earliest caliphs. as had Shāfiʿī. Abū Yūsuf and Shaybānī. more early Ḥanafīs would have maintained a narrow rule of voluntariness. judges. For further discussion. As expected. 11:989 (attributing the “new” opinion to Abū Ḥanīfa as well). Arguably.ruling had contemplated. note 88. the diffusion of the empire and constant contests for power with relative autonomy still makes even strong ʿAbbāsid caliphs less powerful and their authority less singular than the first four caliphs and those immediately following them.96 In sum. Nāfiʿ. based on objective indications that worked to restrict the scope of ḥudūd avoidance in this area. For them.95 Jurists following him then equated the sulṭānic and nonsulṭānic brands of coercion: they held that there was ḥadd liability for any sort of rape in either case. The changed ruling taking the contrary view came to accommodate shifts in politics rather than the factual basis for the law itself. Knowledge: Sex with a Prohibited Partner Alongside a narrow voluntariness requirement. 223    . b. 96 See Qudūrī. Abū Ḥanīfa generally held that there was no criminal liability if a perpetrator of a criminally wrong act                                                                   95 Laknawī. arousal was the type of objective indicant of voluntary intent that made avoiding the ḥadd sanction difficult. Abū Ḥanīfa read a knowledge requirement into the law. and other officials. see above. Tajrīd. Had the political system remained under a unitary caliph and their science gone undeveloped (as indeed the latter seems to have done in later Ḥanafī texts adopting Abū Ḥanīfa’s early view).

228 (ẓanantu annahā taḥull lī). 224    98 . after two divorces].g. if a man divorced his wife three times and then had sex with her during her divorce waiting period. Laknawī. Abū Ḥanīfa too readily acknowledged the element of knowledge required for criminal liability. Here. son.”97 Likewise. ibid. He does not cite it.. but this rule likely comes from the fact that there is a legitimate textual claim for the man’s supposition that sex with the son’s slave woman was licit. the footnote here is incorrect – explaining that it is because fathers actually own their sons’ property. it is more likely that he simply came down on the side of the opinion that figurative speech did not affect the divorce.98 In this way. For Abū Ḥanīfa. Nāfiʿ.” Thus. The doctrinal reason. Abū Ḥanīfa ascribed no ḥadd liability to the man if he claimed that he “thought that she was licit for [him]. For instance. if a man sleeps with a slavewoman belonging to a member of his household (e.. but given the thrust of his other opinions not recognizing interpretive shubha. when there was no harm against the “individual claims” of other parties or victims. or wife). Failure to ask therefore                                                                   97 Shaybānī. al-Jāmiʿ al-ṣaghīr. later jurists explain. he would incur ḥadd liability. the man could have simply asked about her identity if there was reason at all for him to harbor any doubt. “you are free” (khaliyya or bariyya) or “… in charge of your own affairs (amruki bi-yadiki)” [i.Ḥadd liability is canceled in a similar scenario if a man has sex with his wife after he has told her. Here. that is. Laknawī explains that this has to do with a difference of opinion among the Companions concerning whether figurative speech (kināya) could affect divorce. he differed radically from Shāfiʿī and most other jurists concerning the requisite knowledge for acts involving incest. except for the case of someone who has slept with the slavewoman belonging to his son. it may be that Abū Ḥanīfa was recognizing that difference. saying that he thought she was permissible.. 228-29 (noting though that paternity for any resulting child will not be established. and she interprets that as the initiation of divorce. if a man had sex with a woman found sleeping in his house. from which point she enters her divorce waiting period. had to do with the individual’s duty to ascertain the law: instead of having sex with a woman and claiming legality. Ibid. father. his mother.mistakenly thought his actions were licit.e. However. he would incur no ḥadd liability. on the margins of al-Jāmiʿ al-ṣaghīr. namely the common ḥadīth that all other jurists cite (and that later Ḥanafī jurists cite as well) in which the Prophet told a son that “your father owns [or has rights over] you and your property: anta wa-māluk li-abīk. in which case it will be established though he is to pay his son for the value of the slavewoman). perhaps even in his bed. claiming that he thought she was permissible. 228. there is no liability even if the husband says that he thought the action was not legal (ʿAlīmtu annahā ʿalayya ḥarām).

if a person said. this rule amounted to one of strict liability. They viewed the question of ḥadd liability for defamation as an objective inquiry: regardless of intent.would not excuse him from the ḥadd liability incurred if it turned out that she was not in fact licit to him. Qudūrī’s discussion.99 Beyond legal doctrine. 11:5899. See Qudūrī. Here. nor in Jaṣṣāṣ’s Aḥkām. Later Ḥanafīs uniformly cite and discuss this rule. attributing it to Abū Ḥanīfa and offering extended explanations. not a mistake of law.100 Here. the duty to ascertain the state of affairs before acting is no more complex than simply asking the person in front of them before engaging in the act. the knowledge requirement that ordinarily applied did not apply here. At bottom. For him. for instance. and it had to do with notions of sexual morality in a sensitive area of law. * * * Ḥanafīs also diverged from Shāfiʿī on issues of mens rea. runs from 11:5899 to 5907. Abū Ḥanīfa favored a rule of strict ḥadd liability and a dropped knowledge requirement on rational-moral bases. Incest was regarded by that community as especially despicable. in contrast to the equal treatment that Shāfiʿī might have given to them. Ḥanafīs held that no such element was required. “you are not from [a certain] tribe. as in the previous cases where Ḥanafīs and Shāfiʿīs alike are willing to cancel ḥadd liability. and a strict rule of ḥudūd imposition was in place instead. 225    100 . I did not find this rule in contemporaneous works of Shaybānī or Abū Yūsuf. in the other cases. an opposite rule would infringe on certain moral imperatives that he saw as weighted more heavily in the texts than others. Tajrīd. what were the effects of potentially defamatory statements? For example. and—where possible—Abū Ḥanīfa and his associates circumscribed instances of ḥudūd avoidance whenever incest was involved. that circumscription translates into strict liability. or Dabūsī’s work.” Abū Ḥanīfa would not necessarily consider this defamation even if the addressee was from                                                                   99 The material legal difference in categorization is drawn out by later scholars: This is a mistake of fact. it requires asking a legal authority. Against Shāfiʿī’s intentionality requirement (especially for defamation). Isrār.

Finality On another score. as above. in which the Prophet is said to have ordered a ḥadd sanction even after the defendant had repented or expressed remorse.103 Additional reasons related to what                                                                   101 Abū Yūsuf. Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā. 460-62 (describing Abū Ḥanīfa’s position as to the authoritativeness of ḥadīth). Abū ʾl-Wafāʾ (Hyderabad: Lajnat Iḥyāʾ al-Maʿārif alNuʿmāniyya.101 Ḥadd liability therefore should not attach. for which Qurʾānic texts specify as much. This approach to defamation can have mixed results— sometimes tending toward ḥudūd avoidance. See Abū Yūsuf (d. Shamsy. 2. 11:5955-56 (al-taʿrīḍ biʾl-qadhf)). ʿAbd al-Majīd. For other instances of mixed rulings of ḥudūd imposition and avoidance for qadhf. For further discussion. 11:5949-50 (also citing the case of the woman from the Ghāmidī tribe).the tribe in question (and even though Shāfiʿī would disagree if the person intended to deny the defamed person’s lineage). as noted by Shamsy. their rational principle is qualified by textual bases. 182/798). noting that ḥadd was imposed and Māʿiz had repented. they purport to reject statements posing as ḥadīths when those statements contradict known and settled texts from which they extract normative rational principles. Exceptions for them included repentance after apostasy and highway robbery. Here. 19-24. 235-38. [1981]). though without commentary on the relationship between the two facts). see Shaybānī. A mere statement of possible lineage denial then does not in fact have the effect of denying the lineage. but other times tending toward ḥudūd imposition. While Shāfiʿī held that repentance generally does remove ḥadd liability. in Abū Ḥanīfa’s view. see below. From Tradition to Law. Tajrīd. see. Technically speaking. uṣūl). this is a way of mediating between ḥadīth of disputed reliability and in some ways of avoiding the issue of authenticity. cf. ed. 157 (reporting and commenting on the Case of Māʿiz.102 One basis for the Ḥanafī doctrine was reliance on Māʿiz’s Case along with other reported instances of stoning. Qudūrī. al-Jāmiʿ al-ṣaghīr. For a discussion of the Qurʾānic bases. 163 (noting that rival ʿIrāqī judge and jurist Ibn Abī Laylā would impose the ḥadd here). Cf. 226    103 102 . Ḥanafīs held that it generally does not. As a jurisprudential matter. a person is born of two parents. This is one area that challenges the notion that Ḥanafīs ignore text in favor of rational principles (aṣl. Qudūrī. Tajrīd. Kitāb al-Āthār. while the Shāfiʿī rule is the opposite of what one would expect on the basis of the texts. not the tribe. early Ḥanafīs also took a stance that can be perceived as more severe than the Shāfiʿī one when it comes to determinations of whether ḥadd liability continues once a convict has repented. cf. Ittijāhāt.

Ibid. Qurʾān. the Prophet said that ḥudūd sanctions serve as spiritual expiation for perpetrators. In the first place. See also Qudūrī.106 since the requirement for expiation is not canceled by repentance in other contexts. a ḥadīth. and a rational argument that ḥadd liability is removed by repentance). by analogy.107 These examples should suffice to demonstrate that the debates amongst early jurists were not about how lenient in criminal matters one school could be with regard to another. they said. neither should it cancel ḥadd liability. for the textual basis for avoiding the ḥadd sanction in cases of apostasy. 6:38.105 This of course would run the risk of violating the principle of neglecting ḥudūd laws completely (taʿṭīl al-ḥudūd). and intentionality. 11:5953 (citing. (citing. Qurʾān. Ḥanafīs often appear to more easily favor rules of ḥudūd imposition than Shāfiʿī: they both recognized mens rea requirements of voluntariness. an undercriminalization about which jurists were just as concerned as they were with overcriminalization. and the ḥadīth: al-islām yajubbu mā qablah). these jurists were concerned with delineating the circumstances warranting ḥudūd imposition and ḥudūd avoidance. Tajrīd. Instead. every perpetrator would express remorse and ḥudūd sanctions would never apply. Āthār. 157 (al-ḥudūd wuḍiʿat liʾl-zajr). Ibid.104 if repentance always removed ḥadd liability. for the same purpose. but they constructed areas of strict ḥudūd liability when other core moral values upon which they placed interpretive or substantive primacy are implicated. 6:38: qul liʾlladhīna kafarū in yantahū yughfar lahum mā qad salaf. ḥudūd sanctions were legislated for deterrence. (al-ḥudūd kaffārāt li-ahlihā). Secondly. 227    . knowledge.Ḥanafīs took to be the moral values behind the law. In the above instances surrounding mens rea and other elements proved at the evidentiary stage. The divergence in rules of ḥudūd imposition versus avoidance then stems from divergent jurisprudential arguments and                                                                   104 Abū Yūsuf. 105 106 107 Ibid.

As noted. as well as the primacy that each accords to certain moral and jurisprudential values. Where Shāfiʿī’s approach was a textualist one that relied on definitions given by the traditions themselves. as represented most famously in an interpretive debate between Shāfiʿī and Iraqi jurists. but they read them quite differently. Abū Ḥanīfa’s approach was contextualist and relied on linguistic arguments as understood by convention and the rational limits of a given proposition. The argument boiled down to a methodological dispute that centered on the meaning of khamr: was it to be interpreted in light of existing linguistic and social conventions or purely as defined in the texts                                                                   108 See Shamsy. Ḥudūd Avoidance 1. From Tradition to Law. B. the 2nd/8th century saw considerable controversy surrounding the question whether Islamic law prohibited intoxicants other than wine (khamr). Defining Criminal Elements a. The Drinking Debate Like Shāfiʿī and other jurists. Abū Ḥanīfa made determinations about the mandatoriness of ḥudūd imposition and avoidance by first defining the criminal elements for drinking and other crimes. each jurist relied on traditions. For Shāfiʿī.108 When it came to the dispute over the prohibition on intoxicants. 14-24. 228    . Abu Ḥanīfa balanced other substantive values against those concerns.interpretive principles. judicial subservience to the dictates of authentic texts through following procedural interpretive processes was paramount.

and most jurists in Iraq reportedly continued to drink it. Ibn Shubruma).112 but most ʿIrāqī jurists permitted it.v. in contrast to wine. See. esp. along with Shāfiʿī.110 When the Prophet first prohibited wine. The well-known example is the prominent Kufan jurist Ibn Shubruma (d. Ibid. Wakīʿ. Akhbār al-quḍāt. it is significant for our purposes because it had consequences for criminal law and its doubt jurisprudence. 512-27. leading Medinese jurists were against it. 144/761). Only a minority of ʿIrāqī jurists argued.g. Mudawwana. respectively. according to a Ḥanafī reading of history. the Companions differed as to whether the prohibition encompassed potent nabīdh as well. Ḥanafīs argued that a beer-like drink called nabīdh was widespread during the time of the Prophet in Medina. e.113 Like Shāfiʿī.themselves? Shāfiʿī took the latter view while the Ḥanafīs took the former. 557-82. 229    . 14-20. 567 (s.111 By the end of the second century. 7:2459 (reporting Mālik’s opinion defining intoxicants as khamr). The general tenor of the sources suggests that it did not. 56-71 (describing Shāfiʿī’s “linguistic turn”—his theory that the Qurʾān is linguistic in nature in that its language and meaning are self-sufficient and self-clarifying—and contrasting that view with Ḥanafī and Mālikī views. that intoxicants other than wine were prohibited by Islamic criminal law.109 The debate was an indication of an ongoing dispute between two camps about approaches to law that had yet to be resolved. none thinking that it was prohibited and none calling it khamr. 1:385. which was in short supply. Aḥkām al-Qurʾān.. Prominent Companions like ʿUmar and Abū Dharr. he quoted this and several other traditions that he deemed authentic textual                                                                   109 See ibid.. 110 111 112 113 Jaṣṣāṣ. of a linguistic dialectic or of undetermined language). many Successors. Saḥnūn.

Abū Ḥanīfa’s rival Ibn Abī Laylā (d. Āthār.118 Several other Iraqi judges did as well. See ibid.1:164. 224 (reporting anecdotes where Ibrāhīm and Ibn Masʿūd drank it and noting that they used to send a servant to the market to buy nabīdh in khawābī [s. 96/717) regarded it as blameless. “Ibn Abī Laylā. in small quantity and in large quantity. 652. 573-82 (s. One report has it that the governor wanted to prohibit nabīdh. including many outside of Abū Ḥanīfa’s circle.114 In particular. 524). Mūsā. 523-24 (listing several traditions with multiple chains. including the following: (1) “Whatever intoxicates is khamr (mā askara fa-khamr. ca. (6) that raisin nabīdh (nabīdh min al-zabīb) is khamr. as it has been noted that people used to decry and talk about him (ankarū wa-takallamū fīh) for drinking nabīdh. (4) “Every drink that only increases in excellence upon letting it sit is ḥarām (kull sharāb lā yazīd ʿalā ʾl-tark illā jawda fa-huwa ḥarām). this means that they simply did not follow the “permission”) See Abū Yūsuf. See ibid. 3:687. see ibid. Akhbār al-quḍāt.. The reports of his drinking capacity are so exaggerated that they verge on the ludicrous. 523 (najjānā Shurayḥ baʿd mawtih). 115 116 Ibid. Joseph Schacht.. multiple times). See Joseph Schacht. Ibid. By his time. Ibn Shubruma apparently used his office as judge to enforce his views.121                                                                   114 He narrated some of the same traditions as did Shāfiʿī to that effect.proofs to resolve the matter.. he too held that all intoxicants were prohibited based on the ḥadīth that “anything that intoxicates is khamr. Alternatively.”115 But the majority of Iraqi jurists did not define the ḥadd for drinking to encompass nabīdh. On his life and judicial decisions. ʿĪsā b. there was apparently some push back.. Ibid.119 the famous judge Shurayḥ (d. 117 118 119 Wakīʿ. meaning a jar that has nabīdh in it]). Another report has it that Shurayḥ. Some say that he 230    . with the approval of the governor. Abū Ḥanīfa and his circle permitted that drink (even though some reported that the majority of the jurists of the time or the general community (here: umma) was against it)..v.. 182/798). defined as al-jurra alḍakhma. (7) that Ibrāhīm [al-Nakhaʿī] permitted nabīdh even though the umma [practice] was against it (rakhkhaṣa fī ʾl-nabīdh waʾl-umma ʿalā ghayr dhālik) (p.117 as did his student Abū Yūsuf (d.” EI2. 524 (rakhkhaṣa fī ʾl-nabīdh waʾl-umma ʿalā ghayr dhālik). (5) “Khamr is per se ḥarām.” EI2. the leading ʿIrāqī judge after Ibn Shubruma liberated the community from the latter’s hard line against nabīdh after his death.120 as did another famous judge Sharīk (d. khābiya. Wakī ʿ. (3) “Every intoxicant is ḥarām and every intoxicant is khamr (kull muskir ḥarām wa-kull muskir khamr).” (2) “Whatever intoxicates is ḥarām (mā askara fa-ḥarām). Akhbār al-quḍāt. art. art. Ibn Abī Laylā). 678. 576. “Abū Yūsuf. Ibid. 148/765) reportedly drank nabīdh liberally. 650-57. 224-26. and—predictably—was of the opinion that it was permitted. 177/793-4). but was told at one point that it was impossible because Kufa’s faqīh (Ibn Abī Laylā) permitted it. as is any other drink that can intoxicate (ḥurrimat al-khamr bi-ʿaynihā qalīluhā wa-kathīruhā waʾl-sakr min kull sharāb) (multiple chains.116 His teacher Ibrāhīm al-Nakhaʿī (d. 76/695-6 or 80/699-700) permitted it as well. 516-17.

the text would have prohibited it through a clear statement. aiming to show that texts did not speak for themselves and that a proper knowledge of the law required a host of other distinguishing principles to properly interpret the foundational legal texts and extract the proper legal rules. 600. 372 (ṭilāʾ boiled to half of its essence). First. based on what he deemed to be a host of authentic traditions? Ḥanafī jurists disagreed fundamentally with Shāfiʿī’s approach to the traditions. The same exaggerated story that is told about Ibn Abī Laylā is told about Sharīk: that he never used to judge unless he had three helpings of nabīdh (aqdāḥ) to the point that he mixed up the court proceedings. See ibid. 590 (reporting that. it would not have been on the basis a few single.122 According to Ḥanafīs.. 523. 231    . 122 For a more detailed discussion. Further. if there were some blanket prohibition against nabīdh. 460-62 (on Abū Ḥanīfa’s stance toward ḥadīth). 246-54 (traditionist criteria for authentic ḥadīth and the Ḥanafī and Mālikī additions to those criteria: shurūṭ al-muḥaddithīn fī ʾl-ḥadīth al-ṣaḥīḥ wa-mā yuḍīfuh al-Aḥnāf waʾl-Mālikiyya ʿalayh). Sharīk ruled that there was no bar to drinking it (lā baʾs bih)). Ittijāhāt. 593 (noting that he permitted people to drink it if it agreed with them but advised them not to drink so much that they got drunk). 120 121 See Wakīʿ. the traditions that Shāfiʿī and Ibn Shubruma trotted out actually indicate that nabīdh was not prohibited in the law. see ʿAbd al-Majīd. 576. 594. according to a well-known                                                                                                                                                                                                 never let anyone give testimony unless they drank nabīdh and always had a few glasses before going out to judge himself. see Wakīʿ. Akhbār al-quḍāt. as they accused Shāfiʿī of trying to do. not his reliance on them. in response to a group of Medinese who prohibited nabīdh. Akhbār al-quḍāt. if it were prohibited. drinking was a widespread practice and thus a matter of general community concern (ʿumūm al-balwā).. 61-67 (on basic differences between traditionists and ʿIrāqī jurists who adopted raʾy as a type of pragmatic reasoning). Their divergent opinion amounted to an attack on Shāfiʿī-style textualism. and that he even composed a poem in its praise. isolated ḥadīths that later ḥadīth-minded jurists could use strategically as they sought to amplify the import of isolated ḥadīths. Akhbār al-quḍāt. in light of its regularity.On what basis did these jurists argue that drinking nabīdh did not incur ḥadd liability when Shāfiʿī was so sure of the contrary. Wakīʿ. Rather. 578. 595-96. see also ibid.

which is a kind of fermented beverage made from the dates of two different types of trees. Sharḥ maʿānī al-āthār.127                                                                   123 Jaṣṣāṣ. 12:6080.jurisprudential principle accepted by all schools. 594. Ḥanafīs maintained. Muḥammad Sayyid Jād al-Ḥaqq. and Yūsuf ʿAbd al-Raḥmān al-Marʿashlī (Beirut: ʿĀlam al-Kutub.” and therefore forbidden. 1:386. Sunan. Aḥkām. but the man said that he had been drinking a “mixed” drink (khalīṭayn).125 The fact that the Prophet had to prohibit drinks of this type on a case-by-case basis was an indication that no one understood each component to be wine (khamr). Akhbār al-quḍāt. 126 127 Jaṣṣāṣ. it would have manifested at least amongst the Prophet’s Companions and their times. see al-Ḥākim al-Naysābūrī. Aḥkām. more reliable ones indicating that there was no universal acceptance of the proposition that “any intoxicant is wine (khamr). permitted nabīdh. See Wakīʿ. 8:317.126 Moreover. Ḥanafīs argued that the illustrious Companion-jurists Ibn Masʿūd (d.301. 17. Cf. if central to the law. would have been made widely known such that knowledge of would have been reflected in community practice (tawātur). Aḥkām. the prohibition. and that—more broadly— the word khamr did not literally encompass every intoxicating drink. Bayhaqī. Muḥammad Zuhrī al-Najjār. 4:416. For the ḥadīth. no. even in a past generation. they held. 1:387. ed. no. 124 125 Ibid. then khamr was to be taken in a figurative sense so as not to contradict the other certainly authentic traditions. Ṭaḥāwī. Mustadrak. 232    .123 Second. 8129. who is said to have brought the law to Kūfa and served as its first judge. 1994). Tajrīd. 387). Qudūrī. 1:386. there is the ḥadīth relating that a drunken man was brought to the Prophet to be punished. 3:156 (ḥadīth cited in Jaṣṣāṣ. 32/653). If ḥadīths stating as much were authentic. If a prohibition on it had ever been a matter of consensus. Shāfiʿī’s ḥadīths were contradicted by other.124 For example.

even amongst the Shāfiʿī jurists who otherwise tried to equate the drinks. 129 Ibid. Shāfiʿīs.128 Drinks that are not actually khamr. there was enough discrepancy in the sources touching upon the legal-theological consequences of drinking non-wine intoxicants. which logically implies that not even they considered nabīdh-permitters to be unbelievers given the possibility of a different interpretation. there is no ḥadd liability for drinking nabīdh because it did fall within the four corners of the textual prohibition against wine and did therefore satisfy the definitions of the criminal elements for that ḥadd crime. both Shāfiʿīs and Ḥanafīs relied on texts. The Shāfiʿī accommodation of the Ḥanafī divergent interpretation (ijtihād) was socially necessary here to include Ḥanafīs and their followers in—rather than summarily excommunicate them from—the community of the faithful. are called khamr in a figurative sense (tashbīh) when they intoxicate. All of this should serve to prove the point that the prohibition on wine (khamr) is specific to intoxicating drinks made of grapes. kuffār).Finally. Accordingly. jurists deemed those who declared lawful what God had unambiguously prohibited to be unbelievers (kāfir. the Ḥanafīs concluded. and the application of khamr to any other drink is figurative (majāzan). for Ḥanafīs. This included anyone who considered wine (khamr) to be permissible in light of the clear statement against it in the Qurʾān. Yet those who deemed nabīdh and other non-wine intoxicants to be lawful were simply called wrongdoers (fāsiq. fussāq). pl. Aḥkām. even by Shāfiʿīs. to support the point that there was no prohibition of any beverage other than wine (khamr). looked to other texts to define                                                                   128 Jaṣṣāṣ. 1:387. 233    . Notably. but the latter group attempted to extract a rational principle to apply in every situation based on a combination of reason and conventional meaning. not because they have the capacity to intoxicate.129 In the end. by contrast. pl. then.

132 Moreover. esp. neither warranted the ḥadd sanctions. as a later Ḥanafī jurist outlined.. 11:5917-18. 11:5985 (noting that Shaybānī adopts Abū Ḥanīfa’s position. Timeliness and Legal Effects As for other criminal elements. 234  132 133   . and excluded the figurative and conventional meanings that went beyond it as picked up and advanced by the Ḥanafīs. but that Abū Yūsuf takes the opposite view). Abū Ḥanīfa held that the gift removes ḥadd liability because it transforms the legal effects of the ownership interest such that the criminal elements of theft are no longer complete. Justice. For Abū Ḥanīfa. such as male sodomy and bestiality. which he understood to be sex between a man and a woman. consider the requisite elements for ḥadd liability surrounding defamatory statements of sexual impropriety (qadhf): (1) a defamatory speech act                                                                   130 Similar rifts are apparent in rulings concerning other areas of criminal law. This is but an example of a methodological rift between Ḥanafī and Shāfiʿī approaches to law and legal interpretation. See Shaybānī.the text. Abū Ḥanīfa took a similarly pragmatistrationalist view of the texts with an eye to actual consequences or legal effects of certain acts. see Lange. 131 See Qudūrī. 230 (noting that Abū Ḥanīfa imposed discretionary punishments (taʿzīr) and imprisonment for such acts but that Abū Yūsuf and Shaybānī held that the ḥadd was due). 11:5985. For a full discussion. Tajrīd. contingent on all requisite elements for full criminality being satisfied. Āthār. 200ff. On apostasy. See ibid.130 b. Tajrīd. Abū Ḥanīfa’s two disciples disagreed on the issue of acts of male sodomy. so does the presumption. 11:5910-16. for example. because they did not fit the conventional meaning of zinā. Qudūrī. the ruling that ḥadd liability is due is merely a presumption (aṣl). When one of those core elements changes. the transfer removes ḥadd liability. 5912 (for the linguistic argument). An illustration is found in his treatment of theft and what happens when the owner gifts an allegedly stolen item to the accused thief—recalling Ṣafwān’s Case.133 To clarify with respect to another crime. Punishment. see.131 One explanation is that the gift plus the acceptance of it satisfies the legal requisites for transfer of ownership. see ibid. See ibid.. siding with the Shāfiʿī position that the ḥadd sanction was due. for bestiality.

136 Ḥanafīs find a number of fronts on which to attack that view.against (2) a chaste woman. Umayya).134 Likewise. It was as if there was no theft in the first place.135 Ḥanafīs illustrate this point with reference to Ṣafwān’s Case in a reading dramatically opposed to that of Shāfiʿī. In the first place. 137 Qudūrī. is mursal. because Ṣafwān b. Ḥanafīs take a stance that can be perceived as more severe than the Shāfiʿī one as well. 11:5986 (noting that the ḥadīth. the act of defamation obligates the ḥadd punishment of eighty lashes. the ḥadīth is of uncertain import. That is. the ḥadīth is of unreliable attribution to the Prophet. and if the woman in fact subsequently commits zinā at time B before trial or before the sentence for the defamation has been carried out. If the stolen item is gifted to and accepted by the thief (al-hiba waʾl-qabḍ). ʿAbd Allāh did not narrate from Ṣafwān b. 11:5985-86. as the element of nonownership of a stolen item has changed with the transfer of ownership. the presumption of ḥadd liability that was initially due is due no longer.137 Second. A number of                                                                   134 Ibid. 135 136 Ibid. This is because the elements are no longer satisfied.. The major exception is repentance (tawba). Shāfiʿī added a timeliness element to the definition of crimes—specifying that the ḥadd penalty becomes due when criminal acts are committed. ḥadd liability is removed. theft is associated with two legal consequences: the ḥadd penalty (wujūb al-qaṭʿ) and return of the stolen item (radd). which Shāfiʿī holds cancels ḥadd liability—as described above. there is no obligation to return the item. 235    . as narrated in Mālik’s Muwaṭṭaʾ. It is unclear what the actual outcome of the case was. Recall that in his discussion of the case. Tajrīd. not with respect to changed elements after the fact. there is no legal basis for pursuing the full punishment of hand amputation. But if someone commits defamation against a chaste woman at time A. they say. If proved.

Ibid. Abū Ḥanīfa focused on the                                                                   138 Ibid. to determine ḥadd liability.141 Instead. Abū Ḥanīfa looked to the offense with respect to the state of affairs and legal effects at the time of the trial or sentence. 11:5987 (khabar al-wāḥid).140 Even if it is understood from the report that the sentence was applied.narrations end with Ṣafwān pleading with the Prophet not to cut the thief’s hand on the basis of the gift.138 Even if we were to add that report to the others. pl. As had Shāfiʿī. Ibid. (ghayr muttafaqa). p. the holding of the case is at best simply disputed. there is nothing—certainly no solid textual evidence—to stop jurists from relying on the prior presumptions (aṣl. 139 140 141 Ibid. (laysa fīh annahu aqbaḍah iyyāhā). the proper course of action would be to suspend judgment until and unless the basis of the report can be determined. to which the Prophet responds “if only you had done this before coming to me with him: hallā qabla an taʾtīnī bih. even after the verdict. the Ḥanafīs concluded. esp. uṣūl) that transfer of ownership removes ḥadd liability and that the transfer is marked by gift and acceptance.142 The long and short of the matter is that. (wajaba ʾl-tawaqquf ḥattā yuʿlam aṣl al-khabar). 142 There are several other arguments as well. in determining ḥadd liability at least in cases of theft like this one.. See ibid. not at the time of the theft. 236    . the report never mentions that the Prophet actually carried out the sentence. 5987 (analyzing Ṣafwān’s Case).” In all but one version. 11:5987-90 (listing other arguments). The basis for the view that the sentence was carried out is an isolated report by a single narrator—which makes for a dubious basis for such a harsh rule under Ḥanafī principles. the case still would not control the question whether a gift and acceptance of the gift removes ḥadd liability because the report says nothing about whether the thief actually accepted the gift..139 In such cases.

and avoidance. 2. he held that no ḥadd liability for zinā would normally result from a marriage between two closely related relatives. they created at least the semblance of a contract (shubhat al-ʿaqd). In one of his rather unique jurisprudential positions. In other words. But Abū Ḥanīfa also looked to legal effects in his effort to devise rules that would apply predictably across the board as an alternative to adhering to exceptional ḥadīths deemed to be of dubious authenticity and import.definitional elements of a crime—in this case. That difference—as we saw—affected how each school regarded the scope of legal maxims. the law of contract provides some protection for defective commercial transactions pursued on the mistaken belief that they were concluded under color of a valid contract. holding 237    . including issues of ḥudūd liability. ownership. Abū Ḥanīfa appealed to other values that affected this equation as well. In addition. Abū Ḥanīfa extended this norm to family law. even though he otherwise viewed incestuous relations to be so odious. For example. Primacy of Contracts In Abū Ḥanīfa’s view. For him such marriage contracts were defective and thus voidable (fāsid). Both he and Shāfiʿī started with the text but differed on how to approach it. A principle value was the primacy of contracts. imposition. he held that legal permissions that ordinarily flow from a contract are enough to remove ḥadd liability even when a contract is materially defective and even where the social consequences are significant. and this was enough to defeat accusations of zinā defined as sex outside of any marriage contract. but satisfied the form of the contract nonetheless. the laws of contracts often trumped the laws of criminal liability. Ordinarily.

those called milk al-yamīn are validly eligible for marriage (or sexual relations) just as are free. See Kecia Ali. in fact. the Qurʾān permits sexual relations (or marriage) with those considered milk al-yamīn. these verses indicate that the master-slave relationship creates a status through which sexual relations may become valid but that those relations are licit only if agreed upon by both parties. A common reading is the former.D. the “property” in such cases still belonged to the debtor and devolved to the creditor only in case of default. a separate rule permitting master-slave sexual relations did not apply to slavewomen held on security. which in turn indicates that the validation of sexual relations is more akin to contractual family law than to slave law placed under the rubric of property law. Motzki has argued—following Ṭabarī—that at least one Qurʾānic verse affirms this latter view. and has been used as such in legal terminology for marriage and other contexts.” see Ibn Manẓūr. Duke University. Milk is often translated as ownership but. because there was no full ownership.that the semblance of a marriage contract should provide protection as well. A more sophisticated view from the sources for early Islamic law is that the master-slave relationship creates the basis for a type of contractual family-law relationship through establishing a legal right of enjoyment called milk. both require a further consensual agreement—bringing the relationship under the law of 238    144 . There is some question whether this permission falls under slave law or contract law (specifically. the law of marriage contract.144 What of                                                                   143 Ibn Nujaym. 6:92 (s. In other words.. Traditional Islamic commercial law considered slaves to be a form of property and allowed debtors to deposit slavewomen with creditors to assure payment of a debt. 1:128 (noting Abū Ḥanīfa’s rule of ḥadd aversion by shubhat al-ʿaqd even when the contracting parties know of the illegality of marrying a closely-related relative (maḥram) and there is no mistake as to their identities). rad. Ashbāh. i. He applied a similar logic to situations of merchants having sexual relations with slavewomen held as security. Put together. In this example. and in verse 24:33. 1997).143 By deeming knowledge of the defect irrelevant to ḥadd liability. As with monetary guarantees. a master-slave relationship. just as does a marriage contract. Accordingly. 2002) (concluding that marriage and slavery alike in Islamic law were considered forms of male ownership over women).e. m-l-k). In verse 4:24. Money. linguistically refers to the legitimate right the right of access or “entitlement. Sex. Abū Ḥanīfa was articulating a place of primacy for contract law over criminal law and subscribing to a broad view of the scope of ḥudūd avoidance on its basis. believing women. and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period (unpublished Ph. it would exculpate a couple from accusations of zinā. even if they knew that they were not valid marriage partners in the first place. it forbids slavemasters from forcing slavewomen into having sexual relations. understood to refer to those with whom there is a contract or relationship of milk. Further. or family law) within the classical sources themselves. Lisān alʿArab (Beirut: Dār Ṣādir. dissertation.

145 This rule of Abū Ḥanīfa is explained in Ibn al-ʿAlāʾ al-Anṣārī (d. temporary marriage (according to an early Meccan opinion 239    146 . he considered this same matter a case of ḥadd-averting doubt (shubha). not because Ḥanafīs recognize the validity of those rules or view the permissions as valid textual bases that give rise to a reasonable mistake-of-law. Qurʾān. Motzki.146                                                                                                                                                                                                 contract according to a rubric of family rather than property law. 85 (describing the development of Muslim fiqh over time as creating a predominance of the commercial over social exchange in slave law. 5:25. Tafsīr. 5:108-116 (discussing the differences in the rules fī kitāb al-rahn and fī kitāb al-ḥudūd). But when discussing commercial law. For an excellent analysis of these and other issues in Ḥanafī law with a slightly different formulation explained in terms of contracts of “commercial” and “social” exchange. and this provided him a reasonable basis for believing that he had the authority. Abū Ḥanīfa held that judges should avoid the ḥadd punishment in such cases. see also Qāḍī Khan. 12:61-84. al-Fatāwā al-Tātārkhāniyya. neither category of woman can be forced to have sex without her consent—violation of which the sources hold as tantamount to the crime of zinā and/or rape.” 194-95. see Baber Johansen. particularly as applicable to slavewomen). 3:480-89. eds. including verses 4:3. For Abū Ḥanīfa. Law and Society in Islam (Princeton: Markus Wiener Publications. Ibn ʿĀbidīn.cases where the creditor thought otherwise and had intimate relations with the slavewoman he was holding on guaranty? When discussing criminal law. Specifically enumerated are marriages without witnesses (according to the Mālikī rule). Ashbāh. the loan agreement created the semblance of a contract. ed.. 75-76 (calling the master-slave relationship per se validating). or ownership interest (milk) to initiate licit sexual relations with the slavewoman. Amy Singer. 1996): 71-112. 5:5. See Ṭabarī. marriages that non-Ḥanafī schools of law validate give rise to instances of ḥaddaverting shubha. 1990-). entitlement. Abū Ḥanīfa— like other jurists—held that such relations incurred ḥadd liability because there had been no default.” in Baber Johansen. al-Radd al-muḥtār. 786/1384-5). 199-200 (same).145 As a result. 77-78 (calling the male authority that accrues to a man through marriage (milk al-nikāḥ [right of access or enjoyment]) a type of “social property”). and 24:4). 4:23-24 (ḥurrimat ʿalaykum … muḥṣanātu (muḥṣinātu?) mina ʾl-nisāʾi illā mā malakat aymānukum …). Cf. but because those types of marriages can nevertheless yield the semblance of a marriage contract. Fatāwā. 24:33 (waʾl-yastaʿfifi ʾlladhīna lā yajidūna nikāḥan ḥattā yaghniya ʾllāhu min faḍlihi wa-ʾlladhīna yabtaghūna ʾl-kitāba mimmā malakat aymānukum fa-kātibūhum in ʿalimtum fīhim khayran wa-ʾtūhum min māli ʾllāhi ʾlladhī ātākum wa-lā tukrihū fatayātikum ʿalā ʾl-bighāʾi in aradna taḥaṣṣunan …). 4:3 (… fa-ʾnkiḥū mā ṭāba lakum mina ʾl-nisāʾi mathnā wa-thulātha wa-rubāʿa fa-in khiftum allā taʿdilū fa-wāḥidatan aw mā malakat aymānukum …). and Devin Stewart. “The Valorization of the Human Body in Muslim Sunnī Law. Sajjād Ḥusayn (Karachi: Idārat al-Qurʾān waʾl-ʿUlūm al-Islāmiyya. On the same logic. 4:23. 8:151-65 (discussing the active and passive readings of iḥṣān as applied to muḥṣanāt or muḥṣināt in these and other verses. 79-81 (describing as jurisprudentially problematic the juristic regard for slaves as property subject to commercial transactions who nevertheless remain human beings regulated by social conventions). Ibn Nujaym. “Koranische Sexualethik. and thus no legal basis for the act. no transfer of ownership. which conferred on the creditor at least partial ownership of the slavewoman.

according to Abū Ḥanīfa. while all others—including his two Companions. See. Qudūrī.147 C. is shared by the Shīʿa). according to an early Meccan rule). the semblance of one.                                                                                                                                                                                                 attributed to Ibn ʿAbbās. Abū Ḥanīfa privileged contract law. voiding ḥadd liability and espousing a rule of ḥudūd avoidance on the basis of the shubha created by the semblance. for Abū Ḥanīfa. And we see here that Abū Ḥanīfa counseled ḥudūd avoidance when it came to uncertainties regarding continuing criminal effects and to doubts created by contract formalities in a wide realm of commercial law to which he accorded primacy. many mainstream Ḥanafīs. the agreement creates a semblance of a contract that removes ḥadd liability. as between siblings or a slavemaster with a slavewoman without full ownership. a single case can have two aspects—one criminal and the other commercial—and that the two can be governed by two sets of laws with differing legal outcomes.. See Ibn Nujaym. The effect is a general rule of ḥudūd avoidance in criminal cases involving contracts. On the one hand. 1:128. or sexual relations with a slavewoman with the permission of her master (again. Tajrīd. Ashbāh. Ibn Nujaym. In such cases then. al-Baḥr al-rāʾiq. e. the ḥudūd maxim was a well known criminal law principle in Iraq during Abū Ḥanīfa’s time. which. 240    . Islamic commercial law validates such relations whenever there is a contract or.g. and afterward. Early Ḥanafī Shubha As we saw in the last two chapters. before it. and in his judicial decisions. however knowingly defective.These examples illustrate how. 147 Abū Ḥanīfa’s position on contractual shubha carries over to contracts for sex that other jurists consider prostitution: for him. incidentally. 5:16. Islamic criminal law generally defines zinā as sexual relations between two people in the absence of a valid legal relationship. Kitāb al-Kharāj. 11:5908-09. On the other. and other legal schools—reject this rule. Ibrāhīm alNakhaʿī was one of the spokesmen for the maxim and Abū Yūsuf championed the doctrine in his manual penned for the caliph.

Abū Ḥanīfa’s rulings did not always set the norm for his school. which is regarded as a type of ḥadd-averting shubha.. 149 Ibn Nujaym. Muḥammad Muḥammad Tāmir and Ḥāfiẓ ʿĀshūr Ḥāfiẓ (Cairo: Dār alSalām. Kāsānī. Qudūrī. al-Hudhayl. 2000) (drawing from Qudūrī’s Mukhtaṣar and Shaybānī’s al-Jāmiʿ al-ṣaghīr). Other jurists seem to accept contractual shubha as mistake of law (shubhat al-maḥall). identifying it as marital ambiguity (shubhat al-nikāḥ or shubhat al-milk). and shubhat al-ishtibāh fī mawḍiʿ al-ishtibāh fī ʾl-milk waʾl-nikāḥ). ʿAbd Allāh b. 28. regarding ḥadd-aversion in cases of prostitution and marrying a maḥram). Ashbāh. a contract between siblings was not just defective and voidable (fāsid). jurists like Ibn al-Humām insisted that there are only two types of shubha: mistake-oflaw and mistake-of-fact. Tajrīd. it was per se void (bāṭil). 241    150 ..149 And down the line.                                                                   148 Only a minority of later Ḥanafīs followed Abū Ḥanīfa’s views of contractual shubha (shubhat al-ʿaqd). 5:253 (noting that Abū Ḥanīfa added shubhat al-ʿaqd. e. A plausible explanation is that they changed their opinions in response to traditionist opposition by acknowledging the authoritativeness of traditions as a source of law and then bringing their opinions into conformity with traditions as a way of maintaining their prestige in a growing traditionist milieu.. 1:128 (noting their disagreement with Abū Ḥanīfa’s rule of ḥadd aversion by shubhat al-ʿaqd where there is knowledge of illegality of marrying but no mistake as to identity).g. Likewise. because the two parties were ineligible to enter into the contract in the first place. Still others accepted contractual shubha outright.” played a considerable role in the development and spread of Ḥanafī law. see ibid. as noted on the margins above. 5:249-52 (identifying the two categories as “shubha fī ʾl-fiʿl [or] shubhat al-ishtibāh” and “shubha fī ʾl-maḥall [or] shubha ḥukmiyya”). all of which are therefore sometimes called shubha ḥukmiyya. For more information on the role played by these two companions. 2003).g. See. Hidāya. They objected strenuously. Qudūrī.To be sure. 743/1343). for instance. together with a third. ḥaqq al-milk or ḥaqīqat al-nikāḥ versus shubhat al-nikāḥ. Ibn Nujaym pointedly rejects Abū Ḥanīfa’s rule of averting the ḥadd by shubhat al-ʿaqd from siblings who attempt to marry in favor of Abū Yūsuf and Shaybānī’s rule to the contrary. ed. al-Baḥr al-rāʾiq. Kanz al-daqāʾiq. these jurists adopted Abū Ḥanīfa’s rule that ḥadd liability is canceled in cases of incestuous marriages. ed. Zufar b. Fatḥ al-qadīr. Iran: Muʾassasat Usāma. 11:5901-07. as he agrees with Abū Ḥanīfa’s positions in illustrative cases involving contractual shubha (e. Zaylaʿī (d. for example. to the last scenario of contractual shubha. does not discuss the categories but indicates that he would adopt that category if he did. Ibn al-Humām (d.150 For them.. Ibn Nujaym. Accordingly. Marghīnānī. most other Ḥanafīs were of the opinion that ḥudūd punishments were not to be avoided in such cases because there was neither a contract nor a semblance of one. Badāʾiʿ al-ṣanāʾiʿ. Abū Yūsuf and Shaybānī. 3:566. often objected to his rulings and took opposite stances on questions of ḥudūd imposition versus avoidance. 20-36. 5:5 (his work of fiqh. to the point that Ḥanafī law seems to adhere more to their doctrines than to those of their teacher. These two students. but rejecting it).g. E. 9:4150 (defining the types of shubha according to categories of contract as: ḥaqīqat al-milk versus shubhat al-milk. In other words. See Tsafrir. Aḥmad alNasafī.148 His two most prominent student-companions. 861/1457). often implicitly. wherein he rejects shubhat al-ʿaqd when discussing incestuous marriages and the like). Abū ʾl-Ḥusayn ʿAbd al-Majīd al-Murādzahī al-Khāshī (Zāhidān. also called “the two Companions. Early Spread of Ḥanafism. Tabyīn.

” Ibid. The important take-away is the way in which this orientation toward privileging commercial law instruments affected criminal law and contributed to an expanded scope of ḥudūd avoidance.153 The disagreement between Ḥanafī jurists highlights a significant aspect of Abū Ḥanīfa’s jurisprudence of criminal law when placed in competition with commercial law: he either was more oriented to vindicating private commercial agreements or placed contracts on par with foundational texts. before discarding it in favor of the less cumbersome terms “pro-ḥadd” and “anti-ḥadd” factions. Punishment.the prohibition against incest means that any agreement purporting to create a marriage contract between closely related relatives is not legally cognizable. Lange. upon discovery. their marriage is annulled and they are to be separated. 152 153 Ibn Abī al-ʿIzz. 4:148.151 To say otherwise would amount to playing with the law and Muslim scripture itself. 5:16 (discussing contracts of incestuous marriages. Baḥr al-rāʾiq. incestuous masterslave relations. 242    . 201. 200ff. and prostitution as a temporary contract for sex). It appears more likely that Abū Ḥanīfa as well as Abū Yūsuf and Shaybānī came to function as name tags for currents of thought within the Ḥanafī school. according to one scholar. he says. specifically prohibited incest and the law otherwise details conditions for valid contracts.154 The fluid nature of the substantive doctrines associated with Ḥanafism in particular begs the question whether the assembly of divergent views deserves the label “Ḥanafī. This divergence of Abū Ḥanīfa’s disciples was a regular occurrence.”                                                                   151 See Ibn Nujaym. violations of these rules then absolutely warrant ḥudūd punishments for zinā. Justice.152 The Lawgiver. “One should keep in mind that one cannot know for sure whether these are indeed their original teachings.. to the point that one can think of almost two separate currents of Ḥanafism—“followers of Abū Ḥanīfa amongst the Ḥanafīs” as opposed to followers of Abū Yūsuf and Shaybānī. Tanbīh. 154 Christian Lange introduces this terminology to reflect the radically divergent opinions of Abū Ḥanīfa and his Two Companions on male sodomy. Even where the parties are unaware of the relationship. He also observes that the positions of each side as represented in the 2nd/8th and 3rd/9th century sources are spotty at best although several later jurists attribute certain opinions to each side. Ibid.

”155 A third element involves the one she did not address in her book—the doctrines and methodological approaches of the Ḥanafīs contained in the legal sources. Internally. We can add that Ḥanafīs were also characterized by a certain approach toward text and textualism that brought them more in common with one another than with their Shāfiʿī and Mālikī counterparts. Early Spread of Ḥanafism. and presumptions warranting ḥudūd avoidance. the group was viewed as a distinct and cohesive group. the students shared a sense of affiliation and transmitted doctrines—even when they diverged from those of their teacher—as “Ḥanafī. uṣūl) of ḥadd liability but that were only fully determined after an evaluation of competing values. Ibid. Externally. * * * Subsequent Ḥanafīs followed one or the other of the early Ḥanafī currents— typically breaking down their regard for and application of the ḥudūd maxim according to the opinions attributed to Abū Ḥanīfa on the one hand and to his two students on the other. These later Ḥanafīs invoked the maxim early on in their fiqh and jurisprudential works. Abū Ḥanīfa and his students shared an approach that regarded the text as a starting point that created certain presumptions (aṣl. she opts to call those associated with 2nd/8th Ḥanafism the “Ḥanafī circle” rather than “Ḥanafī school. source authentication. xii-xiii. In recognition of the divergent elements and the lack of full information about the doctrines of the time. known attribution of the maxim to the Prophet                                                                   155 Tsafrir. Despite their divergences on substantive rules of ḥudūd imposition and avoidance. xi.” which was not sharpened until the 3rd/9th century as marked by their participation in implementing the Inquisition about the Createdness of the Qurʾān (miḥna) and fully in the 4th/10th century by the elaboration of legal theory (uṣūl al-fiqh). pl. 243    . with an emphasis on criminal law. even if we cannot now identify its full contours.Nurit Tsafrir has argued convincingly that it does on the basis of both external and internal evidence. Recall that the first surviving. A common stream within both currents was the acceptance of the ḥudūd maxim. This is the focus here..

Most jurists at that point accepted the ḥudūd maxim as Prophetic and argued with other jurists (as well as with each other) about just when the maxim applies. by the time of the illustrious Ḥanafī jurist Qudūrī (d. For                                                                   156 Jaṣṣāṣ (d. Sarakhsī (d. 3:330. 370/981). That hypothesis was no doubt based on the literary sources that anecdotally recorded Ḥanafī encounters with the maxim. especially given the two very different currents of thought on ḥadd liability on particular points of law (such as the validity of contractual shubha). the maxim was prominent elsewhere. more intent on ascertaining whether there was ḥadd liability on a case-by-case basis than on spelling out the scope of ḥudūd avoidance according to any broad theory based on the ḥudūd maxim. for a couple of centuries. except that he used the ḥudūd maxim more liberally. It is at this point that Qudūrī. there is a thick juristic discourse about the contours of shubha and scope of the ḥudūd maxim itself.comes from the hand of the Ḥanafī jurist Jaṣṣāṣ (d. The Mālikī legal literature suggests that it was perhaps most attested in Medinan jurisprudence. and subsequent Ḥanafī jurists began to outline the theory of shubha through delineating the model cases where it arises and gives rise to ḥudūd avoidance. Early Mālikīs Mālik too focused on delineating areas where the ḥadd liability applies and where it is canceled. and the maxim now seems to us better known for its Iraqi usage—so much so that Fierro posits that Iraqi Ḥanafīs brought it into circulation and remained its greatest champions. 370/981). This is striking as he was in the Ḥijāz. 483/1090). Aḥkām.156 At the same time. These developments are taken up in the next chapter.157 IV. but as the legal literature shows. However. 157 See Chapter 4. Ḥanafīs were. 244    . 428/1037).

Ḥudūd Imposition Mālik defined criminal elements with respect to a mix of subjective and objective indicia. idem. 1978). he directed judges to actually find shubha at certain stages. for an “update” to his study covering courtroom proceedings in addition to theoretical matters. Mālik’s Concept of ʿAmal in the Light of Mālikī Legal Theory (unpublished PhD dissertation. determinations of ḥadd liability turned in significant part on what happens in the courtroom. University of Chicago. Mālik aligned with the other schools in intentionality requirements and the like. University of Chicago. 245    . Thus. he fell somewhere in between Shāfiʿī’s tendency to accept claims about a defendant’s subjective state of mind (claims of ignorance. lack of criminal intention to commit defamation) as valid justifications for avoiding ḥudūd sanctions and Abū Ḥanīfa’s tendency not to. On issues of mens rea. Before that stage though. New York: Routledge. 2007). Original Islam: Malik and the Madhhab of Madina (London. see Mohammad Fadel. 1. Ḥadīth in Islamic Law: The Case of Sadl Al-Yadayn (Holding Ones Hands by Ones Sides) When Doing the Prayer. “ʿAmal v. Adjudication in the Mālikī Madhhab: A Study of Legal Process in Medieval Islamic Law (unpublished PhD dissertation. see Yasin Dutton. except that he typically looked to objective indications of criminal intent or culpability. For Mālik. subjective facts like ignorance or mistake could be valid excuses.158 A. mistake. In fact.Mālik. Often. 1 (1996): 13-40. he too outlines areas of ḥudūd imposition based on his understanding of Prophetic Sunna reflected in Medinan practice (ʿamal).” Islamic Law and Society 3. but he typically required defendants to prove it. The most comprehensive survey of this concept in Mālikī jurisprudence is that of Umar Faruq Abd-Allah. he invoked the maxim often to describe how a judge should handle questionably criminal cases. he then placed the burden on the                                                                   158 For overviews of Mālikī law and the doctrine of relying on the “practice of the people of Medina” (ʿamal ahl al-Madīna) as determinants of Sunna. Mens Rea: Quasi-Objective Indicia and Shifting Burdens In his approach to mens rea. he took the external clues pointing to those factors as circumstantial evidence of guilt. 1995). particularly in the face of conflicting ḥadīths.

denying his affinity with the man’s proper group would amount to a denial of lineage.162 A similar regard for circumstantial or conventional evidence applied in other areas. Mālik held that if a person looked at an apparently Arab man and said.) If one man said to another man.. literally: genus)—this would incur no ḥadd liability. If the addressee were a client of another tribe from non-Arab origins (mawlā). my mother and father were not promiscuous. 2:392. which typically means effeminate. who made intention to defame an element of the crime. Muwaṭṭaʾ.161 This conclusion is backed up for Mālik by a precedent involving ʿUmar b. one man said to another man. 246    . for instance. take defamation as an example. Some of these rules reflected and went implicitly to preserving status hierarchies based on genealogy. he asked the man about his statement and received the reply that the man simply had been praising his parents. Thus. al-Khaṭṭāb. Roman.160 This is because it is clear from normal language conventions that the speaker was accusing the addressee of being promiscuous by implication..accused to demonstrate their innocence. “By God. For example. If one man called another mukhannath. Again. or Nabatean—or some other race (jins. Mālik held that use of this phrase created a presumption of ḥadd liability because the conventional meaning of the word is                                                                   159 Saḥnūn. 7:2429 (taʿrīḍ) (reporting Mālik’s saying that fī ʾl-taʿrīḍ al-ḥadd kāmilan). “O Abyssinian!” (i. Black man). Ibid. 160 161 Ibid. During his time. in defamation cases.159 (Recall that this is in contrast to the position of Shāfiʿī. 7:2435. (mā anā bi-zān). Ibid. Persian. ʿUmar responded that there are better ways to praise them and flogged him.” he would be liable for the ḥadd punishment. It is as if the external factors create a presumption of guilt. Mālik held that implicitly defamatory statements (taʿrīḍ) constituted the crime of defamation and incurred full ḥadd liability. Mudawwana. 162 Mālik. he would be ḥadd-liable if the addressee was Arab because the phrase used amounted to placing him outside of his own “race” or “nation” (jins). “I am not the promiscuous one.” When the case was brought to ʿUmar to adjudicate.e. and called a Berber.

removing ḥadd liability by oaths was contingent on the oath being somewhat plausible. because objectively speaking his claims would be implausible based on the external state of affairs.defamatory in most social contexts. The man could. where mukhannath means “bent or impotent” before God (mukhannath biʾllāh)—which is another conventional.163 For Mālik. Arabic-English Lexicon (Cambridge: Islamic Texts Society. that he did not mean to make a derogatory or factually untrue statement). or that he merely meant to pay the other man a spiritual compliment. rape always warranted ḥadd liability against the perpetrator and the victim was always absolved of ḥadd liability. the oath of the person who called him effeminate would be accepted (i. Some cases for Mālik were matters of strict liability according to objective determinations. the removal of which hinged on plausible claims of non-criminal intent. and ʿAṭāʾ). If the target of the statement was in fact effeminate or soft-spoken (taʾnīth. Yasār. ḥadd liability would not be removed from the one who made the statement despite his claims that he did not intend to defame. see Edward W. 247    . kh-n-th). istirkhāʾ). Edinburgh: Williams and Norgate. But if the addressee had none of those characteristics. 164 Saḥnūn. however. absolve himself of ḥadd liability by swearing an oath that he did not mean the statement in a derogatory way. 1984) [Orig. the important question involved                                                                   163 For this sense. Sulaymān b. publication: London. 1:814-15 (s. implicitly defamatory statements created a strong rebuttable presumption of ḥadd liability.. Abī Ṭālib. rad. they required no proof and no excuse was valid. 1863]. as most other jurists held (all except Abū Ḥanīfa and those following him on the issue of sulṭānic coercion). Ibn Masʿūd. 165 Ibid. and attributing this opinion to ʿAlī b.164 Thus. Rabīʿa. Mudawwana. Lane. 7:2440.. but less frequent meaning. and this would remove ḥadd liability. līn. 7:2444 (equating sex with a sleeping or insane woman to rape.e.165 But for Mālik. For example.

where the man was presumed guilty unless he could prove otherwise. See Chapter 2. whereby ʿUmar believed that she had been raped and ruled that there was no ḥadd liability.proving the rape. Appendix. Mālik cited the case over which ʿUmar presided in which a man took his wife’s slavewoman with him on a trip and had sex with her. ʿUmar ruled that unless the man could produce proof of                                                                   166 Mālik. Instead. wherein the Prophet purportedly averted the ḥadd punishment from the victim and perpetrator. Appendix. 14 and citations therein.167 Through it. he claimed that his wife had given the slavewoman to him. 248    167 . Muwaṭṭaʾ. For support. 15 (Case of Rape. But see Chapter 2. He did not allow mere claims of rape. she was required to produce some evidence of the marriage or that she was raped. the judge was not to accept her claim on her word alone. Mālik placed on the accused the burden of proof that any mistake as to an alleged sex crime was an honest one. But when ʿUmar asked the husband about it. and this turned out to sometimes create a tough standard for the victim to meet. 2:390. Case no. such as indications that she had been crying or had called for help while being raped. Case no.166 Here. Likewise. If a woman known to be unmarried was found pregnant and claimed to have been married to the father of the unborn child or to have been raped. he showed the extent to which he was shifting the burden of proof—when compared to other jurists—to the victim in some instances. the wife brought the case to ʿUmar—signaling that she had not given her permission for sex and that the relations were not licit. particularly when they went against other circumstantial evidence suggesting that zinā—perhaps of the non-coerced kind—had occurred. Jealous. much less welcome. Mālik was perhaps drawing on the practice reported in Medina of the (Yemeni or Medinese) woman who came to ʿUmar crying. echoing the situations above. without requiring strong evidence).

249    169 . as noted above. 10. This story is a version in the Sunnī context of a case related as one of ʿAlī’s judgments above. anal sex was zinā. based as they were in raʾy without the benefit of Medinan practice. 8:513-779 (kitāb ikhtilāf Mālik waʾl-Shāfiʿī). he would receive the ḥadd for adultery. For a discussion of the differences between Shāfiʿī and Mālik on substantive areas of law (mostly non-criminal). he did not discuss shubha or contemplate much role for the ḥudūd maxim. For further discussion. From Tradition to Law. For him. Like Shāfiʿī. Mālik’s approach to the question of when ḥadd punishments were due was based on his understanding of the Sunna as exemplified by Medinan community practice.168 In sum. Therefore.his claim. In this area. revealing their interpretive differences vis-à-vis ḥadīth.—could be rebutted. ḥadd liability became due when all signs pointed to a crime as defined in his understanding of the Sunna. he defined zinā as sex between a man and a woman. Umm. see ibid. this—and not as for Shāfiʿī just issues of ḥadīth authenticity—was the best arbiter of confusion concerning the content of the Sunna. etc. implicitly offensive words. The presumptions created by circumstantial evidence—pregnancy.. Criminal Elements and Convention In defining other criminal elements. but bestiality was                                                                   168 Ibid. see Shāfiʿī. pp. 24-28. Case no. 2. See Chapter 3. For him. but only with requisite plausible proof. 2:293. 52-53 and Appendix.. see Shamsy. Mālik was known to resolve the issue of conflicting definitions of Sunna based on divergent traditions by following the practice (ʿamal) of the people of Medina. So the wife “confessed” to having gifted the slavewoman to him. and for him. that entailed proof that all the elements of the ḥadd crimes were present based on the objective indications of fact. For a discussion of Mālik’s limitations on variant opinions that emerge from Ḥanafī-style raʾy. Based on his understanding of the Sunna. Mālik’s aim was to bring order to the growing chaos brought about by disputed views of the Sunna on the basis of conflicting ḥadīths and some of the ʿIrāqī juristic opinions that—in his view— could not claim to be based in Sunna.169 And it was on this basis that he proceeded in his discussion of when ḥudūd punishments were due. 23.

7:2459-60 (according to Ibn al-Qāsim). Mudawwana. he defined the prohibition against drinking to include any beverage that was intoxicating. as the lines of definition for him were clear and the evidentiary standards relatively straightforward: Once it was established which crimes fell under ḥudūd laws based on the Sunna as known in Medina. it not surprising then that Mālik’s discussion of ḥudūd avoidance and the scope of the ḥudūd maxim would arise in matters of procedure and evidence. He accepted the tradition that “any intoxicant is wine (khamr).171 Criminal liability for drinking.. as exemplified in Ṣafwān’s Case. 7:2459. Muwaṭṭaʾ.172 Mālik’s discussion of the elements was not very detailed and he made no mention of shubha.170 Like Shāfiʿī. 250    . is proved when the accused confesses to drinking an intoxicant or witnesses testify that they have seen a defendant drinking or smelled intoxication on his breath (an allowance of circumstantial evidence typical in Mālikī law). 2:397.not. such that the former incurred ḥadd liability while the latter did not. 172 173 171 Saḥnūn. 7:2420 (on bestiality).” and held that Medinan practice affirmed that rule. Ibid. Mudawwana. Mālik. he held—along with the other jurists—that no intervention was allowed. And once those indicants were proved in a courtroom.173 With his focus on convention-backed textual clarity from the sources and interpretations of Sunna. as described below. objective proofs of criminality were necessary to trigger actual ḥadd liability. This of course differs radically from the Ḥanafī position discussed above.                                                                   170 Saḥnūn. he held.

2:293. or servants who steal from their masters where they have free access to the house. there was some                                                                   174 Ibid. there will be no ḥadd liability where a man takes his son or daughter’s belongings or has sex with a slavewoman belonging to one of his children. He says that this position (aṣl) was a matter of dispute as to what Ibn al-Qāsim’s position was: is the joint ownership (sharika) the shubha for one of the partners in his portion of ownership. Ibn Rushd says that this is considered a ḥaddaverting shubha. as has been explained in the samāʿ of Saḥnūn. Mālik identified some plausible doubt (shubha) as to whether the accused had a legitimate ownership interest or basis for his or her actions. Muwaṭṭaʾ. in Ibn Rushd al-Jadd. In potential cases of theft or zinā. Bayān.. Criminal Elements and Completion Mālik looked to some of the same instances as did Shāfiʿī and early Ḥanafīs when contemplating situations of ḥudūd avoidance. ʿUtbī. Ibid. nor had property been taken from. such that the act is no longer considered a crime (yuqaddar bi-hādhihi ʾl-shubha wa-duriʾa ʿanh al-ḥadd bihā fa-kharajat min an takūn jināya). 2:402-04 (calling it deception or fraud (khalasa or khiyāna) rather than theft). someone with whom there was no plausible ownership interest—albeit erroneous. Mālik. Ḥudūd Avoidance 1. Most involve cases of theft or zinā where the ownership interest or right to enjoyment was unclear. there will be no ḥadd liability if a man has sex with a slavewoman that he only partially owns in that he shares joint ownership (and thus claims the right to enjoyment) with a business partner.B. Cf. He concluded that there is no ḥadd liability in the above scenarios because the money had not been stolen from a secure location. In each situation. Some are by now familiar. 16:165.174 Similarly. 251  176   .175 The same goes for spouses who steal from each other in a house they share. 175 Ibid.176 In all of these cases. or sex enjoyed with.

2:406. in other words they had to have an intent to rebel without such valid interpretation). anything short of a completed crime in which there was no doubt concerning ownership interest and the like according to the Sunna—as informed by the practice of the people of Medina—was cause for ḥudūd avoidance. and that “the ḥadd is averted from …: yudraʾ ʿanh al-ḥadd” a man who has sex with his son or daughter’s slavewoman. baghy (rebellion) did not connote criminal liability itself. Abou El Fadl.180 For Mālik. Cf. in the same way that objective indicia of a completed crime create ḥadd liability. though this is illegal. Ibid.178 Likewise. Mālik spelled out that. 241-44 (noting that.. and it is in this vein that Mālik invoked the ḥudūd maxim in such cases. and the law only punishes the latter.measure of doubt.. mere attempt—where a thief has gathered materials with a clear intention to take them but has not yet removed them from a secure location—would not render the would-be thief eligible for the ḥadd punishment for theft. Thus. 178 179 180 Ibid.179 These are bad intents. 252    . even though that too is illegal). and that rebels were not criminally liable simply for attempts or for acts against the state if they enjoyed a valid interpretation (taʾwīl) legitimating their acts. not bad acts. as the jurists developed the term. 2:393 (saying that “the ḥadd is averted by [the permission given]: duriʾa ʿanh al-ḥadd bi-dhālik” in the case of a man who has sex with another man’s slavewoman with his permission. or a man sitting with a woman and desiring her but not actually pursuing sex with her. This doctrine extended in short order as Mālikī law spread beyond Medina and Egypt to Andalusia.                                                                   177 Ibid. neither would there be ḥadd liability for a man who has an alcoholic drink in his hands but has not actually sipped it. Accordingly. Rebellion and Violence. merely subjective indicia voided it. Mālik was explicit that the ḥadd does not apply when the elements of the ḥadd crime have not been completed according to objective criteria.177 In other scenarios.

there were also Mālikīs in Baghdad during the early period. Aḥmad b. Sources for the school’s doctrine. For further discussion. 2000). Ibn al-Qāsim was also the main informant for the ʿUtbiyya. Peri Bearman. 37-38 (providing examples of differences between the two works attributed to Asad that suggest different authors). see Jonathan Brockopp. see Fuat Sezgin. The other two are only available through small quotes in extant books. are in short supply outside of those circulating in Ifrīqiya and Andalusia and to a lesser extent. Devolution. which spread widely across North Africa and Spain.183 who                                                                   181 Mālikism began in Medina and spread to Egypt then North African and Andalusia. 1. Harvard University. Mālik. come from the second half of the 3rd/9th century [256/869 and 292/904]). Mālikī law in Egypt and Andalusia had taken advanced steps toward placing the ḥudūd maxim at the center of criminal law policy. Saʿīd: Entstehungsgeschichte und Werküberlieferung (Stuttgart: Deutsche Morgenländische Gesellschaft. published as an independent work.” Arabica 14 (1967). “Mālik’s Teachings in al-Andalus. 269/882) and the Kitāb al-Wāḍiḥa of Ibn Ḥabīb (d. ʿAbd al-ʿAzīz al-ʿUtbī (d. Note that Miklos Muranyi disputes the idea that the Mudawwana was initiated by Asad.2. and the ʿUtbiyya. “The Introduction of Mālik’s Teachings in al-Andalus. Rudolph Peters.” in The Islamic School of Law: Evolution. Mabāḥith. in Qayrawān). MA: Islamic Legal Studies Program. x. who answered them according to what he had heard from his teacher. 191/806) provided the basis for the school’s doctrines as contained in a work called the Mudawwana. see Ibn Rushd al-Jadd. 19672007). Geschichte des arabischen Schrifttums (Leiden: Brill. where Mālikī law flourished. Early Mālikī Law: Ibn ʿAbd AlḤakam and His Major Compendium of Jurisprudence (Leiden. That work comprises questions that Saḥnūn asked of Ibn al-Qāsim. Bayān. There. 240). F. Kommissionsverlag.” 110: noting that Ibn al-Qāsim was the main informant for Muḥammad b. 2005): 41-56. 238/362) form the canonical works for Andalusian Mālikī law (ummahāt). Schacht refers to manuscripts listed in Carl Brockelmann. For an analysis of Mālikī law in Egypt and the extant parts of the “oldest systematic handbook of the Mālikī school” penned by the Egyptian jurist Ibn ʿAbd al-Ḥakam. see Jīdī. 1996-). quoted in Ibn Rushd al-Jadd’s al-Bayān waʾl-taḥṣīl and preserved in part in manuscript form. Cuestiones Legales del Islam Temprano: La ʿUtbiyya y el Proceso de Formación de la Sociedad Islámica Andalusí (Madrid: Consejo Superior de Investigaciones Científicas. al-Mawwāz al-Iskandarī (d. 63-66.182 In explaining Mālik’s opinions to Asad b. 255/869) and that his ʿUtbiyya—also called al-Mustakhraja min al-asmiʿa mimmā laysa fī ʾl-Mudawwana—became one of the relied-upon books of the school). for our purposes. 66 (quoting Joseph Schacht. both believed to be recorded by Asad. This matter may deserve further attention in another context. however. al-Qāsim (d. 50 note 109 (citing bibliographies for the mss. al-Furāt (d. “On Some Manuscripts in the Libraries of Kairouan and Tunis. or according to his own ijtihād if he knew of no on-point doctrine from Mālik. For the manuscripts. vol. Egypt. Finding Shubha: The Judicial Role Within just a couple of generations. Ana Fernández Felix. 1999). together with the Mawwāziyya by Muḥammad b. Frank Vogel (Cambridge. Of these books. See his Die Rechtsbücher des Qairawāners Saḥnūn b. only two fully survive—the Mudawwana. 213/828) and then Saḥnūn. These. 18 (noting that the oldest surviving dated fragments of the Mudawwana and the Mukhtaliṭa [= al-Asadiyya]. New York: Brill. For the quotations. 182 Ibn al-Qāsim was an Egyptian jurist and student of Mālik from time spent in Medina. ed.181 ʿAbd al-Raḥmān b. his reports of his teacher’s jurisprudence were recorded in a work called the Mudawwana. 2003) (cited [in the unpublished PhD dissertation version] in Carmona. Boston: Brill. For a more comprehensive review of Mālikī 253    183 . Steiner. there is no dispute that the work comes from and was considered the most important compendium of Mālikī law in Andalusia by the first few decades of the 3rd/9th century. esp. For a fuller list. see Alfonso Carmona. and Progress. Geschichte der arabischen Litteratur (Leiden.

It generally received much praise from the major scholars. In the Case of Māʿiz. The purpose in pursuing this line of questioning was to discover whether there was any ḥadd-averting deficiency in the criminality of the act or culpability of the defendant. The judge. and was called “the second source [of law]” (al-aṣl al-thānī) after the Muwaṭṭaʾ. Mudawwana.H. Beiträge zur Geschichte der Ḥadīt und Rechtsgelehrsamkeit der Mālikiyya in Nordafrika bis zum 5. he said.. 185 186 Saḥnūn. 13. 1997). In other words. preferred over the other canonical Mālikī works. method. Appendix. 184 The Mudawwana was known as the basis for binding legal judgments and advisory opinions (qaḍāʾ and iftāʾ). D. though the act itself otherwise counts as a ḥadd crime. was in keeping with Mālik’s criminal law policy. and manner of commission crimes to ensure that before he imposed ḥadd liability. the technical legal definition of the crime with all its elements were met. al-Madhhab al-Mālikī. Mālik was the first jurist to explicitly call upon the judge to investigate criminal cases with an eye to ḥudūd avoidance. was to inquire about the time. Mālik asked defendants about the precise nature of their crimes. judges were to investigate each case for the presence of doubt of the type that would trigger the ḥudūd maxim (i.: bio-bibliographische Notizen aus der Moscheebibliothek von Qairawān (Wiesbaden: Harrassowitz. See Chapter 2.184 According to Ibn al-Qāsim. 63-66. Case no. see idem.recorded the Mudawwana. JH. 7:2463 (wa-innamā ʾl-qaṭʿ ḥadd min al-ḥudūd fa-yanbaghī liʾl-Imām … [an] yakshif fīh al-shuhūd kamā yakshifuhum fī ʾl-zinā).e. Ibn al-Qāsim explained. Jīdī. Ibn al-Qāsim drew on Mālik’s opinions where possible but provided his own interpretative reasoning (ijtihād) where he did not find anything from Mālik relevant to an issue at hand. mā yudraʾ bih al-ḥadd ʿanh)?186                                                                                                                                                                                                 luminaries and doctrines from the 2nd/8th through 5th/11th centuries based on manuscript evidence from the Qayrawān Library. the Prophet had asked Māʿiz whether he had perhaps merely kissed or touched a woman but confessed to zinā because he mistakenly thought that those acts met the technical meaning of that crime. 254    .185 Likewise. This. which in turn appealed to the example of the Prophet. it may be that the value does not rise to the level warranting the ḥadd sanction of hand-amputation. Thus.

Ibn al-Qāsim explained. and that their testimony was to be thereafter accepted (wa-uqīlā wajāzat shahādtuhumā). he may be punished (yuʿāqab). they could receive a discretionary punishment. 255  189   . that they were not to be disciplined with punitive measures for the mistake. the problem explained much of the shifting procedures of the criminal trial. Ittijāhāt.189 As well. given the ever-present specter of mistaken or false testimony (shahādat al-zūr). the judge should avoid the ḥadd punishment.187 If two witnesses testify against a man accused of theft by a third accuser that he did in fact steal.Following his teacher. it was the major issue plaguing medieval Christian judicial contexts where judges and jurors were concerned with their standing before God and their own salvation. Effective means of doing so included being attentive to issues of evidence and adopting heightened mens rea requirements. and that their testimony was to be rejected thereafter).188 In a similar vein. but the judge should avoid the specific ḥadd sanction because there is no solid evidence that the man in fact stole the three dirhams or the requisite equivalent to complete the elements for theft. For example. in Ibn al-Rushd al-Jadd. 114-16. the judge should avoid the ḥadd sanction because there is doubt as to whether he has satisfied the requirement for theft of goods worth three dirhams. 16:220. Bayān. but that if they were not known to be upright. Ibn al-Qāsim insisted that judges should evaluate questions of ḥadd liability with an eye toward avoiding ḥudūd sanctions. 549-50. which would require firmer evidence. ʿUtbī. if a thief confesses to stealing but adds that he only has a single dirham left of the stolen money. In such cases generally. The specter of false testimony was also significant elsewhere. but two other witnesses then testify that someone else was the culprit. Mudawwana. as measured during the Prophet’s time. and passim. this hypothetical position would ordinarily be difficult to justify or put to practice as the testimony of the two witnesses only conflicts with that of the former ones. the conflict does not itself prove that the first two witnesses had committed perjury or that someone else was in fact the culprit. their mistake was to be overlooked. that they could be held liable for paying diya for the cut limb if they retracted their testimony after the imposition of the ḥadd sanction. Reasonable Doubt. To be sure. if a thief steals an item worth three dirhams of debased money. he held that judges should be open to witness testimony beyond the initial testimony presented. “I prefer to                                                                   187 This was a significant issue in Muslim evidentiary contexts from the earliest periods. 188 Saḥnūn. see ʿAbd al-Majīd. ʿUtbiyya. 7:2479 (noting that if the first two witnesses were upright and spoke to the best of their knowledge. For an analysis. See Whitman.

But Ibn al-Qāsim added that for ḥadd liability to attach. it may be illustrated by the following scenario. 16:210 (reporting that Ibn al-Mawwāz held an opposite view). like a woman during her divorce waiting period). and held that                                                                   190 Ibn al-Rushd al-Jadd. When discussing Mālik’s ruling under the rubric of theft. Mudawwana. for Ibn al-Qāsim. offenders would have had to have both entered such marriages purposefully and have known that they were prohibited. Bayān. including a fifth wife. 7:2411 (noting that marriage to classes of per se prohibited partners. and a woman otherwise barred from marriage (maḥram)) . like a closely related relative. if purposeful and with knowledge of the prohibition (ʿāmidan ʿārifan biʾl-taḥrīm) would incur ḥadd liability. Ibid. for situations where a father takes from his son. 256    192 . he would not receive a ḥadd punishment. Mālik subscribed to the majority view that a man incurs ḥadd liability for purposefully marrying a legally barred partner (whether permanently barred.”190 As for the heightened mens rea requirement. Even if a man married a woman during her divorce waiting period.avoid the ḥadd sanction because of the presence of doubt (aḥabb ilayya an yudraʾ al-ḥadd biʾl-shubha). Mālik’s knowledge requirement entails awareness of both the illegality and the specific criminal punishment associated with the act. Ibn al-Qāsim called the situation one of shubha. but thinks that he would have averted the ḥadd sanction (yudraʾ al-ḥadd) because this is unlike the case of marrying a fifth woman and is therefore similar to the precedent established by ʿUmar who avoided the ḥadd punishment and instead required the couple to separate and ruled that they could never become licit to each other thereafter).191 This meant that there were some cases wherein even purposefully marrying prohibited women would not incur ḥadd punishments. 7:2419 (commenting that he does not remember Mālik’s opinion at the moment. but claimed that he did not know that he would receive the ḥadd penalty for doing so. admitted to having known of the illegality of marrying during that time. or temporarily so. 191 Saḥnūn.192 Thus.. a thrice-divorced woman. a foster or actual sister.

the ḥadd is to be avoided (duriʾa ʿanh al-ḥadd biʾl-shubha) because of the shubha created by his ignorance about the law.194 But Ibn al-Qāsim is careful to delineate situations of ambiguous ownership and access like these—which create a ḥadd-averting shubha—and non-ambiguous ones—which do not. 7:2472.193 Likewise. the guest is not ḥaddeligible because of the shubha created by the living arrangements under a single roof. Thus. even if the owner has locked it away and the guest has to break the lock to steal it. that is. If the guest then takes or uses property in the house. 7:2472. 194 195 196 Ibid.. 257    .196 Likewise. while a wife who takes property from a house that she shares with her husband will not be ḥadd-eligible. Ibn alQāsim expanded on Mālik’s examples of canceling ḥadd liability for spouses or servants who share a house. if a man welcomes a guest inside his house. For Ibn al-Qāsim. or if a servant takes money belonging to his master or mistress. not knowing that it is in fact illegal to grant such permission. he has essentially created a situation wherein he offers access to his belongings contained in the house.. Ibid.. Ibid. as he says in these same pages that the one who loans a slave woman is ḥadd-eligible). because the man allowed him into his house.195 Here.the ḥudūd maxim applies (wa-qad qīla ʾdraʾū ʾl-ḥudūd biʾl-shubahāt). he is pointing to a view common among later jurists that ḥadd liability attaches when there is a lack of shubha concerning ownership or permissibility of use. 7:2417-18 (presumably this is where he does not know of the illegality. ḥadd liability remains. if the second person receives this permission—                                                                   193 Ibid. 7:2469.. Ibn al-Qāsim also considered ignorance of the law to be a type of shubha that creates a ḥadd-averting excuse. If a master allows another man to have sex with his slavewoman. if she takes her husband’s property from a house other than the one they share.

It may signal that Mālik too privileged recognizing commercial law instruments above ḥadd imposition.199 From this discussion. again. one might compare this to Abū Ḥanīfa’s ḥudūd avoidance in commercial law contexts. For further discussion. we see Ibn al-Qāsim’s approach to—and one might say tendencies toward—ḥudūd avoidance on the basis of an expanded definition of shubha. (describing a situation where a man or woman permits another to have sex with his slavewoman: this incurs a ḥadd on the one to whom the slavewoman was made permissible but as to the accused.200 Yet he invoked the ḥudūd maxim liberally. is similar to the shubha created by the ownership interest conferred by the permission.198 The proof that Mālik required for claims of ignorance remained throughout his disciples’ elaboration of the law. for example.despite its illegality—and has sex with the slavewoman. see below. he will be excused.. the ḥadd is averted—though he has to pay the value of the slavewoman—regardless whether he knew that the relations were not licit (yudraʾ ʿanh al-ḥadd jāhilan kāna ʾlladhī waṭaʾa aw ʿāliman). that would be enough to establish the sale or marriage claim and to thus avert the ḥadd sanction (daraʾat ʿanh al-ḥadd). he ordinarily would receive a ḥadd penalty. 7:2411-12. 199 200 Thus. ḥadd liability might be removed so long as the accused could prove his claim if the slavemaster denied it. Ibid.197 This. the mistake or claim of ignorance would have to be plausible and sometimes would require proof. For the shubha to be ḥadd-averting. whether or not he knows of its legality. but is perhaps explained by the rule requiring knowledge both that the act was illegal and that it would carry specific ḥadd liability. 198 Interestingly. or contradicted by more reliable testimony. and in the process—by creating a                                                                   197 Ibid. through swearing an oath. the ḥadd punishment will not fall in cases where the testimony is implausible. He maintains Mālik’s emphasis on evidentiary proof and his placement of the burden on the defender to prove shubha where all objective or circumstantial evidence points to a completed act. for instance. But where the offender claims to have either bought or married the slavewoman. For example. This is odd. If someone has sex with a slavewoman who belongs to someone else. if a victim of theft says the 258    . as in Mālik’s rule on qadhf above. If he did so.

1999). Ibn Ḥabīb. In his legal writings. especially regarding instances where ḥadd liability is removed because of problems in the evidence. See ibid. quoted Ibn alQāsim extensively on issues of shubha. it does not. such as Ashhab (d. and Ibn al-Mawwāz (d. Ibn al-Qāsim reports that Mālik would impose the ḥadd. and specifying types of evidentiary shubha—he expanded the range of shubha and thus the scope of the ḥudūd maxim on evidentiary and procedural grounds.202                                                                                                                                                                                                 item was not in fact stolen but two reliable witnesses testify that it was. Ibn al-Mawwāz [al-Mawwāziyya]. particularly when there are conflicts as to time. 201 For examples. C. including: Ibn al-Mawwāz. and place. 204/819). Ashhab frequently disagreed with instances where Ibn al259  202   . for all. 269/882). the conflict does not create the type of doubt that would remove ḥadd liability. Early Mālikī Shubha Other Mālikī jurists followed suit in their writings. and the maxim appears to have figured prominently in their practices as well. in cases of true conflicts. see Ibn Abī Zayd al-Qayrawānī (d. a prominent Mālikī jurist of Cordoba. Because the elements of the crime are satisfied either way under Mālikī law. al-Nawādir waʾl-ziyādāt (Beirut: Dār al-Gharb al-Islāmī. Muḥammad b. identifying mistake and ignorance as shubha. also devoted considerable attention to detailing issues of evidence. Ibn al-Qāsim in ʿUtbī.heightened mens rea requirement. 9:95-101 (quoting several works mostly no longer extant as independent works. Ibid. 238/853). manner. Prominent Mālikī jurists of the same generation and a little before. Of course not all of them agreed on when ḥadd liability was canceled. 386/996). Kitāb Ibn Ḥabīb [= al-Wāḍiḥa]). K. Aḥmad al-ʿUtbī (d. 255/869). Ibn Ḥabīb (d. ʿUtbiyya (esp. 7:2465. the ḥadd only applies with airtight evidence that the elements of the crime have been established.201 Their emphasis was on detailing what evidence sufficed to warrant ḥadd liability.. kitāb aldaʿwā). An example of a false conflict is where two witnesses testify that a man has drunk an intoxicant but disagree whether it was nabīdh or khamr. Not all were as bent on ḥadd avoidance as was Ibn al-Qāsim either.

203 204 205 See Ibn Rushd al-Jadd. not the shubha concerning the secure location. That is. 60 (applying it as a ḥadīth and maxim to several cases). See Ibn Rushd al-Ḥafīd. Dhakhīra. 4:493-5 (same). the ḥudūd maxim was a regular part of Mālikī jurisprudence and was pervasive amongst the highest echelons of society in the jurists’ attempts to continue the practice of the Companions and the people of Medina. to the two Ibn Rushds—the grandfather and the grandson—of the 6th/12th century and beyond. in any area to which they all had access. 4:1307-09. 2:88. For example. See Abū ʾl-Walīd al-Bājī. 684/1285).As for practice.. Furūq. Muḥammad ʿAbd al-Qādir Aḥmad ʿAṭāʾ (Beirut: Dār al-Kutub al-ʿIlmiyya. Tabṣirat al-ḥukkām. ed. 2:431 (quoting an opinion of a judge attributing the maxim to the Prophet). Wansharīsī (d. in the common example of alleged theft between relatives. legally. 16:324-25. al-Muntaqā sharḥ Muwaṭṭaʾ Mālik. Ibn al-Qāsim reportedly invoked the maxim to avoid the punishment. 260    . Case no. Ibn Farḥūn (d. ʿUtbī reported a case in which a man suffering from extreme hunger sold his wife to another man for funds. Bājī explains that Ashhab’s opinion was based on a view of the crime from the perspective of rights to the property. holding that it was due. Subsequent Mālikīs expanded on this line. For discussion. 915/1508). See Qarāfī (d.203 And we have already seen another episode involving the Cordoban jurist Ibn Ḥabīb (d. the grandfather-thief does not have an obligation to provide for his grandson. 4 and accompanying references. But jurists disagreed as to whether this ḥadd-removal rule applied to alleged theft on the part of a grandfather or other relatives. Bayān. by the 4th/10th century. 238/853). who invoked the maxim to save his brother Hārūn from a death sentence for a blasphemy accusation. Bājī explains that theft constitutes anything for which there is no shubha as to whether the element of taking from a secure location was satisfied (mā lā shubhata lah fīh min ḥirz mithlih). two examples can demonstrate the point. Dasūqī (d. 1999). he held that the son would receive the ḥadd punishment for theft for taking his father’s goods: he also has no claim of right (shubha) to his father’s property (lā shubhata lah fī mal al-ab [li-annah] lā nafaqa lah minh). Bidāyat al-mujtahid. 799/1396-7). so has no claim of right to his property to offer the type of shubha that would avert the ḥadd. For the same reason. Miʿyār. from Ibn Abī Zayd in that century and Ibn ʿAbd al-Barr and Bājī in the next. ibid. Ibid. Appendix.204 As Ibn al-Qāsim and other Mālikī jurists show. 9:232. Ashhab held that it remained. idem. Mālikīs and most jurists held that a father may not receive the ḥadd for stealing from his son. 12:50-51. see Chapter 2. or other relatives from one another. 2:324 (claiming universal consensus on the prophetic ḥadīth and practice as applied to doubts surrounding zinā charges: idraʾū ʾl-ḥudūd biʾl-shubahāt.205 The                                                                                                                                                                                                 Qāsim held that the ḥadd liability was removed. Mālikīs also regarded the maxim as a sound prophetic ḥadīth. Where Ibn al-Qāsim held that the ḥadd liability was removed. by the 3rd/9th century at least.

jurists of this early period knew of the maxim.                                                                                                                                                                                                 1230/1815). their dispute was over what constituted normative text and authoritative bases for ḥudūd imposition versus avoidance. Conclusion As conceived by the jurists. Mālik’s followers were an exception to the rule. Only after this first-tier interpretive process would the maxim weigh in. V. the ḥudūd maxim only arose when the text itself or the surrounding evidence gave no clear answer about criminality or culpability. 617 (citing the ḥudūd maxim as a Prophetic ḥadīth). they were intent on reporting cases of ḥudūd imposition versus aversion without necessarily relying on a well-defined concept of shubha that the ḥudūd maxim invokes. the province of maxims was the province of the absence of text.). (For if the text was clear and the evidence certain.) As such. al-Thamar al-dānī. Nor did they offer broad based theories about definitions of shubha. As before. 4:337 (wa-qad warada idraʾū ʾl-ḥudūd biʾl-shubahāt . these developments are covered in the next chapter. Azharī. the primacy they placed on subservience meant that ḥudūd imposition was mandatory. of uncertainty.ḥudūd maxim featured centrally as Mālikīs systematized the concept of shubha in ḥudūd laws and led up to the theorization of the ḥudūd maxim in the legal maxims literature. Typically. but in law manuals had to address concerns about what the text said in order to determine what the law was.. and—surprisingly—emerged as broader champions of the rule than the Iraqi jurists. they looked to evidentiary infirmities for ḥudūd avoidance.. Instead. these jurists did not employ the ḥudūd maxim liberally. and insisted on ḥudūd imposition in the substantive criminal law. 261    . Ḥāshiya. Thus. as filler for the gaps between the lines of text. of doubt. By and large. They were all textualists.

262    . That was the task taken up by the next generations of scholars. without delineating shubha or at least model cases of it. ḥudūd avoidance was easily absorbed into his jurisprudence of substantive criminal law. all jurists recognized shubha as a ḥadd-averting element of criminal law proceedings. but they largely relegated determination of that shubha to a case-by-case basis in the courts. thus. Regardless.An exception was Abū Ḥanīfa where he placed primacy on the value of contracts.

” these jurists constructed multifaceted conceptions of what constituted the types of doubts and ambiguities that warranted application of the maxim. Introduction After the early (pre-“professional”) period of the first three to four centuries that saw the ḥudūd maxim in wide circulation. Shāfiʿī. professional jurists further developed the jurisprudence of doubt. I begin with the doctrines of shubha 263    . This chapter examines the variations in these legal doctrines of doubt with an eye to the factors and rationales that drove them. They also differed as to the rationales justifying the principle. In this legal maxims literature. That is. and Shīʿī) came to invoke it regularly in legal treatises detailing how ḥudūd laws established in past scenarios are to apply to new cases. the ḥudūd maxim figures prominently. Conceiving of the maxim as a ḥadīth. Proponents of the maxim differed significantly in their definitions of the types of doubts or ambiguities that would trigger it. Nonetheless. most jurists (Ḥanafī. Mālikī. and Interpretive Shubha I. In considering new and sometimes “hard cases. The 7th/13th century saw the rise of entire compendia devoted exclusively to the most authoritative and enduring maxims. The ḥudūd maxim remained a central pillar of criminal law and of the jurisprudence of legal maxims more broadly throughout the classical period. Procedural. they built up complex theories around the concept of shubha. broad agreement on the centrality of the maxim in the mainstream did not mean general agreement on its meaning or appropriate use.CHAPTER 4 The Expansion and Contraction of Doubt Jurisprudence: Substantive.

Review of these shubha categories and their accompanying model cases reveals a picture of the ḥudūd maxim as the central governing principle of Islamic criminal law in matters of both substance and procedure. I end with a discussion of the limitations that substantive moral values placed on the expanded notions of shubha developed in these schools. They could also push the maxim to a position of centrality in their chapters on criminal law in legal treatises. I will point to many of the examples that jurists used to fill out their doctrine. By the time of the rise of legal maxims literature as a genre. once the ḥudūd maxim had acquired Prophetic authority. as shown in the work of 10th/16th century jurist Ibn Nujaym (d. Developing Ḥanafī Shubha Ḥanafīs developed the doctrine of shubha gradually. 970/1563). the ḥudūd maxim not only appeared in the discussions of criminal law in legal treatises but framed them. then examine shared concepts in the Shāfiʿī and Mālikī schools that converged around theories of doubt within regimes of Islamic legal pluralism. Subjectivity and Mens Rea: Ḥanafī Shubha A. Over this vast 264    .developed in the Ḥanafī school. they provided frameworks to subsume new cases under the rubric of the ḥudūd maxim and the various categories of shubha that emerged and/or were labeled during this period. Ḥanafī jurists were free to fold it into the very definition of substantive criminal laws. as the dominant one for much of Islamic legal history. Those examples as served as “model cases” that drew on actual earlier precedents and served as normative guides to cover analogous types of cases that would arise in the future. By the 4th/10th century. II. While demonstrating the diversity of thought between and among Islam’s legal schools in this “professional” period.

expanse of legal history. Salim Özer (unpublished PhD thesis. 1997): 151-1945. Turkey]. wherein ḥudūd avoidance was generally relegated to evidentiary matters whenever there was no clear statement of law. 430/1039) was the first known leading Ḥanafī to move beyond the incidental negative acknowledgement of shubha of the earlier period.1 Within this discussion. marriage during a woman’s divorce waiting period). even if she and her spouse know of                                                                   1 See Abu Zayd al-Dabūsī (d.2 Some of the scenarios that he discusses are by now familiar: if a woman enters a marriage contract that is indisputably defective (e. he first lays out the major issues and points of difference circulating amongst Ḥanafīs and others up to his time for each major division of criminal law. for zinā. faṣl al-shubha (shubha). See ibid. 1213-33. faṣl al-sharṭ (same). Kitāb al-Asrār. in Debbusi’nin “El-Esrar fi’l-Uṣūl ve’l-Furu’” Adli Eserinin Tahkik ve Tahlili. The sections in the chapter on zinā are as follows: faṣl al-rukn waʾlmaḥall (substantive elements). Erciyes Üniversitesi [in Kayseri. faṣl man yajib ʿalayh wilāyat aliqāma (sentencing). He generally divides sections into discussions of substantive elements and evidentiary/ procedural elements. Thus. the maxim and instances of ḥudūd avoidance served as bases for outlining model cases of application. the maxim was transformed from a substantive principle taken to reflect prophetic precedent to a textual rule issued by the Prophet and back into a substantive principle framing criminal law.g. 265    . 2 Ibid. From these cases was extracted a broader principle to govern the entire field of criminal law: a legal maxim that expressed core substantive and interpretive principles of Ḥanafī law.. Abū Zayd al-Dabūsī (d. and he places shubha in the middle of the two. 430/1039).. As ḥadīths. 1220-23 (faṣl al-shubha). ed. he devotes an entire section to detailing the instances of shubha that may arise. He highlighted the concept of shubha and folded it into the law positively—making it central to the entirety of criminal law by integrating entire sections specifically devoted to detailing instances of shubha in his discussion of each ḥadd crime. often with an added section on carrying out the sentence.

For them. though Dabūsī outlines some evidentiary grounds as well. NB: The “currents” do not always break down as pitting Abū Ḥanīfa against his two students. mostly centered on the law of contract. can render the couple ḥadd-liable. 266    . 1221 (per se void: bāṭil). Ibid. ḥadd liability is voided. it is analogous to trying to sell a free person—a non-starter from the first instance because of the invalidity of that aim. The reason that they would not incur the ḥadd sanction under Abū Ḥanīfa’s rule is the presence of what we may call “contractual shubha. the second scenario here shows Abū Ḥanīfa and Shaybānī agreeing against the opinion of Abū Yūsuf. a contract to rent a woman for sex). 1221-23. In other words. he highlights differences between the two currents of Ḥanafī thought on ḥadd liability as well as similarities between them in their regard for shubha: both currents converge at the point of saying that wherever shubha is present. the ḥadd sanction would apply simply because there is no shubha in fact. For him.. the defect may invalidate the contract but the form of the contract nevertheless creates some question about whether the sex acts done under color of the contract. (2) a temporarily insane man having sex with a slavewoman then coming to his senses after the fact and attempting to buy or marry her to make the act licit. for instance.” which he took to have arisen as soon as two parties formed a contract. and Zufar. For the latter opinion. such that no contract comes into being in the first place.4 Throughout his discussion. (4) a man admitting to having sex with a woman who denies it. (5) a woman having sex with a minor or insane man.3 In these and other scenarios that Dabūsī adduces. (3) a man having sex with the slavewoman belonging to his wife.the illegality of consummating the marriage.. the grounds for ḥudūd avoidance concern ambiguities about the substantive criminal law.. 4 Further examples include: (1) prostitution (lit.                                                                   3 Ibid. they would not be ḥadd-eligible by Abū Ḥanīfa’s rule though they would be according to his disciples Abū Yūsuf. Shaybānī. Abū Yūsuf and Shaybānī held that the contract in this scenario is per se void and they argue that this is so by consensus. even if defective.

. a single confession is insufficient to establish ḥadd liability for zinā—the minimum requisite number of times being four. 6 7 Ibid. which does not exist in cases of confession.. and the ḥadd is to be avoided because of the maxim that “ḥudūd sanctions are avoided in cases of doubt. but if five perjure themselves (leaving only three witnesses to the act). which removes any doubt that might be left by a single confession (that is. For defamation. Abū Yūsuf holds that the person nevertheless is not ḥadd-eligible. 1229 (fa-tabqā ʾl-shubha waʾl-ḥudūd tusqaṭ biʾl-shubahāt).”6 Similar issues arise in non-zinā crimes in the respective sections on shubha. That being the case.. says Abū Yūsuf. because of the confession affirmed by the testimony. 1239-43 (faṣl al-shubha: listing scenarios). Abū Yūsuf counters that the witness testimony is inadmissible unless there is a genuine dispute.7 Dabūsī posits that. if four witnesses testify that a man committed adultery with one woman and four other witnesses testify that he committed adultery with another woman. if the person confessed once and without corroborating testimony). those five will be collectively responsible for a quarter of the blood money paid to his family for wrongful death and will receive a ḥadd punishment for defamation according to Abū Ḥanīfa and                                                                   5 Ibid.5 For example. the accused receives the sentence of death by stoning for the act. Shaybānī maintains that he is. 267    . See ibid. The single confession creates a sort of “confessionary doubt” (shubhat al-iqrār). if someone confesses to having committed fornication and four witnesses testify in affirmation that he committed the crime. 1223 (describing the proof (ḥujja)).In a section on “proof” (ḥujja) Dabūsī further specifies instances of ḥudūd avoidance on evidentiary and procedural grounds as he continues his review of intraḤanafī differences.

will he be ḥadd-eligible if arrested upon exit? Dabūsī holds that he will be. intending to collect the items on the other side. On theft. Thus. the ḥadd punishment is obligated unless there is some external factor that requires avoidance.”10 In discussing some of those factors. Dabūsī continues follow the strategy of the earliest treatise-writers in first laying out the core elements of the crime before discussing instances of doubt..Abū Yūsuf. 1240. Theft includes the following elements in Ḥanafī law: a taking. and it is but a dishonest legal stratagem (ḥīla) to suppose that this does not constitute a                                                                   8 Ibid.. Dabūsī says.8 Their perjury has created another type of shubha that counsels ḥudūd avoidance for two separate crimes. then throws them onto the street and exits the premises. because throwing the goods out of the secure location to collect them on the other side signals a clear intent to steal them. 1200. 1193. 268  10   . if members of each group of witnesses perjure themselves—making their testimony inadmissible in one context (the adultery accusation) to avoid a punishment—their testimony should not be regarded as truthful in the other context (the defamation charge) to incur one. If someone enters a secure location and gathers the goods there in preparation to steal them. because of his view that legally. 9 Ibid.9 Once those elements are met.. of a minimum actionable amount. the crime of adultery was established at the time of trial. from a secure location. he mentions disputes about whether a ḥadd punishment applies for a mere attempt or an uncompleted theft. Shaybānī would avoid imposing a ḥadd punishment on the perjured witnesses. a caveat that explains why he “begins with the rule then [focuses on] the external factors that require [a finding of ḥadd-averting] shubha. Ibid.

disagrees.15 Shāfiʿī. holding that the throwing out calls into question whether there was a “taking” and therefore creates a doubt about one of the core elements of the crime of theft (shubhat al-ʿadam)... he holds that the ḥadd punishment is to be avoided. Ibid. for imposing ḥudūd sanctions was a known obligation performed out of subservience to the divine and as a means of spiritually purifying the offender.“taking. 13 14 12 Ibid. ibid. The other type of shubha (of deficiency) was a substantive doubt that he covered in the section of the substantive definition of theft beginning that chapter.). referring to a deficiency in the completion of a substantive criminal element. the ḥudūd maxim applies to avoid the ḥadd sanction: waʾl-shubha tudriʾ al-ḥadd. Dabūsī                                                                   11 Ibid.”13 He addresses this type of doubt in the section devoted to shubha..14 Here.11 This “shubha of deficiency” is thus another type of shubha.. 1205. According to Dabūsī. Cf.. he notes. 1205 (shubha musqiṭa baʿd tamām al-ʿilla bi-sharṭihā). is “shubha that removes [ḥadd liability] after the completion of the crime by some [evidentiary] contingency. See Ibid... however. 1205 (defining shubhat al-ʿadam as “a deficiency in an element or condition for completing of the crime: nuqṣān al-sabab waʾl-sharṭ). but Dabūsī counters him point-by-point on the bases of his disagreement in an attempt to justify the universal Ḥanafī rule that ḥudūd avoidance applies in such cases. He reads Ṣafwān’s Case as providing support in his favor and against Shāfiʿī’s reading.. 15 Ibid. and noting that where there is shubha (here: shubhat al-ʿadam).” Zufar. Dabūsī details. 1205-11. 1199. the old example that arose in Ṣafwān’s Case is first on his list. disagreed. The Prophet only made that statement. If a thief comes to own a stolen item after being sentenced but before the sentence is carried out. the Prophet did not exclaim “if only you had [gifted the stolen item to him before you came to me]” out of any compunction about applying the sanction. 1200 (discussing the punishment for highway robbery.12 Another type of shubha. 269    .

. Ibid. see ibid. see Qudūrī. The doctrine of ḥudūd avoidance by way of shubha would not then apply because the man had what might be deemed constructive knowledge of the prohibition. 1122 (kitāb al-diyāt: faṣl al-shubha biʾl-āla). some believe that he did not in fact impose the ḥadd punishment under the circumstances. 270    . 231 (masāʾil al-shubha al-musqiṭa liʾl-kaffāra). Dabūsī discusses intra-Ḥanafī differences as to when ḥadd liability is due or may be avoided for different substances..20                                                                   16 Ibid.. Zufar held that this man would technically be ḥadd-liable because ignorance will not excuse his failure to ask about the norm in Islamic lands once he had entered them. Dabūsī launches a defense of the Ḥanafī acceptance of nabīdh and other non-wine intoxicating drinks through acknowledging but interpreting away Prophetic ḥadīths that Shāfiʿī adduced for a contrary rule.. laws of retaliation. 996-1007 (kitāb al-ikrāh).17 One scenario involves a non-Muslim who lives outside of Islamic territory and wages war against Muslims. 1250-51 (fa-ammā fīmā tusqaṭ biʾl-shubahāt fa-lā li-anna ʾl-dalīl law qāma wa-fīh shubha māniʿa ʾl-ḥadd fa-kayfa idhā lam yaqum …). Tajrīd. 19 20 Ibid. because he did not want the crime to be known publicly.18 But for equitable concerns. 17 18 See Dabūsī. and spiritual expiation for violations of ritual law. the ḥadd should not be imposed. 1205-06. Ibid.maintained. For other discussions of shubha in matters of discretionary punishments. moreover. following the precedent that occurred during Abū Bakr’s time when ʿUmar avoided imposing the ḥadd sanction for drinking when a recent convert swore that he had not heard of the Qurʾānic verses prohibiting drinking. 11:5989-90 (noting that at least one narration reports that the Prophet did not apply any ḥadd sanction). 1244-50 (kitāb al-ashriba). and there is no proof to the contrary. For further discussion. 1250 (istiḥsān). Asrār.16 In the chapter on wine consumption.19 Dabūsī says. then converts but continues to drink wine and claims that he did not know it was illegal. On the basis of the Ḥanafī rule.

e. 340/952) are regarded as the first Ḥanafīs to pen works of legal maxims: Taʾsīs al-naẓar and Uṣūl respectively (see. These presumptions are short statements of law explaining or justifying dominant Ḥanafī positions and differentiating them from positions of other schools in disputed areas. in contradistinction from divergent Shāfiʿī views). Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence (Leiden: Brill. each stated presumption is accompanied by examples of application.In this way. These works are examples of takhrīj literature (takhrīj al-furūʿ ʿalā ʾl-uṣūl). These latter questions were expressed by the ḥudūd maxim. or whether jurists bent over backward even to the point of implausibility to find it.21 During the same period in Baghdad. art. xxii (presenting six works of takhrīj and arguing that the juristic treatment of both methodological principles and substantive legal rules “stimulated advanced juristic minds to consider the need for constant adjustment of both the theoretical and practical aspects of the law).. Sometimes. e. throughout his treatise. Abū Zayd al-Dabūsī. 127 (listing presumptions governing theft and when ḥudūd liability versus ḥudūd avoidance is warranted. Muḥammad al-Qudūrī (d. the stated purpose of which is to show the relationship between school-presumptions and substantive legal rules. head of the Ḥanafī school in Iraqi lands Aḥmad b. 271    .d). Wolfhart Heinrichs. the disagreement was about whether there was cause for shubha. n. Dabūsī and an earlier scholar ʿUbayd Allāh al-Karkhī (d. Qudūrī raises six scenarios that                                                                   21 Incidentally. see Ahmad Atif Ahmad.g.. Instead.” EI2. However.g. For an introduction to takhrīj literature. 12:517). pointing out instances where reasonable jurists both within his school and from without could disagree. 2006). Dabūsī highlighted difference and ambiguity together. supplement. as such. but it was never about whether shubha in and of itself was ḥadd-averting or that jurists should take cognizance of ḥudūd avoidance when considering the law. “Ḳawāʿid Fiḳhiyya. After detailing the contours of the law. He did not make separate categories for shubha. ed. which Dabūsī’s discussion of shubha folded into every discussion of criminal law on both substantive and procedural grounds. 428/1037) also rendered the ḥudūd maxim central in his discussions of criminal law. Cairo: Maktabat al-Kulliyyāt al-Azhariyya. See. Muṣṭafā Muḥammad al-Qabbānī al-Dimashqī (Beirut: Dār Ibn Zaydūn. Take just one area of law: sex crimes (zinā). Taʾsīs al-naẓar. reflecting both substantive rulings and methodological principles particular to that school. he detailed scenarios of it in extensive discussions that explored and defended the Ḥanafī position on disputed areas of criminality. those works list presumptions (uṣūl) of Ḥanafī law. takhrīj works are related to treatises on maxims but distinct from them in content and purpose.

the ḥudūd maxim played a key role. male sodomy. in the first scenario. or bestiality. the legal basis for defending the Ḥanafī rule. For example. but who it later becomes clear is illicit. (discussing voluntariness literally as “choice”: ikhtiyār). and counter-points to possible Shāfiʿī objections to his defense. arising almost as if an arbiter in the dispute between the two schools—though not with absolute sway.22 so their presence signifies voluntariness. For each scenario. he noted a Ḥanafī position that there was ḥadd liability as against the Shāfiʿī position that there was not. 11:5896 (quoting the ḥudūd maxim as a prophetic ḥadīth: idraʾū ʾl-ḥudūd biʾl-shubahāt). having sex with a woman thinking that he had a legal relationship with her that make her licit. Presumably. rather. Qudūrī grouped these model cases under the title “doubts and ambiguities” (shubahāt). having sex with a woman with whom he cannot legally enter into a marriage contract to make sexual relations licit. He defended the Ḥanafī view based on Abū Ḥanīfa’s doctrine that fear prevents desire and arousal.. Throughout.23 If Shāfiʿīs were to respond by arguing that the Prophet required judges to follow the ḥudūd maxim. ḥudūd avoidance was due. Ibid. 272    . The six scenarios concerned whether a man will be ḥadd-liable for: coercion of a man to commit zinā or to rape a woman..24 he would respond that the validity and applicability of the maxim as a general                                                                   22 Ibid. because there was no clear statement from the foundational texts to place these acts in the main section of zinā laws. 11:5896-98 (al-khawf yunāfī ʾl-shahwa waʾl-intishār). when discussing coercion and rape. prostitution (or paying a woman for sex). 23 24 Ibid.fall outside of the literal definition of zinā. Qudūrī laid out the nature of the difference between Ḥanafī and Shāfiʿī positions. and as such had become subjects of major controversy—particularly between Shāfiʿīs and Ḥanafīs—regarding whether certain acts could properly be defined as zinā crimes or whether.

Qudūrī again toed Abū Ḥanīfa’s line that the semblance of a contract was sufficient to create the type of shubha that required ḥudūd avoidance.27 A similar argument applied to male sodomy. Ḥanafīs have concluded that there is not. who avoided imposing the ḥadd punishment. When she did. sex acts under those auspices cannot be considered zinā by definition. The sources report that during the time of the second caliph ʿUmar. Whereas Abū Ḥanīfa held that no ḥadd liability would result. 26 27 Ibid. 5908-09.principle governing criminal law is beyond dispute. a woman sought water from a shepherd.26 One reading would be that he did so on the basis of necessity. As such. there was an early precedent—one that even Shāfiʿī would consider textual proof—to back up his position. 5908-09 (fa-daraʾa ʿanhā ʾl-ḥadd). the woman had not acted voluntarily or with criminal intent. though defective.. The dispute is about whether there is shubha in this case.. 11:5903.25 Furthermore. Shāfiʿī either treated it like zinā or held that the death penalty applied automatically. 273    . men renting women for sex.e. the matter was brought before the caliph for adjudication. Another reading— especially in light of the fact that ʿUmar seems to have avoided imposing the ḥadd sanction on either party—was that this report should be understood to mean that ʿUmar recognized the exchange as a de facto. Qudūrī added. Ibid. After listing textual legal and rational bases to defend                                                                   25 Ibid.. who refused to give it until she had sex with him.” i. marriage contract that at least created shubha as to ḥadd liability. As for acts of “prostitution. And on their evaluation of matters of fact.

274    ..32 Sarakhsī discussed intra-Ḥanafī differences over ḥadd liability for the following: sex between a man and the                                                                   28 Ibid.28 Qudūrī ends with a note about doubt. creates doubt (here: shakk). Sarakhsī listed ambiguous cases (shubahāt) invoking questions of ḥudūd avoidance after laying out the basic elements of the crime on textual bases. see Chapter 3... for him. and in the face of doubt. which became one of the central works of Ḥanafī law with enduring relevance even in later periods. The Persian scholar Shams al-Aʾimma al-Sarakhsī (d. he held. prostitution (or short-term contracts for sex). Ibid. 5910. The disagreement. For an analysis of Ṣafwān’s Case. 483/1090) approached shubha similar to the treatment given it by Qudūrī of just a few generations before in Western lands. making a linguistic argument that male sodomy (liwāṭ) is distinct form fornication or adultery (zinā) by convention. applied to questionable or disputed instances of theft and other areas of criminal law. Tajrīd. and accompanying text (citing Qudūrī. 5909 (citing Qurʾān. al-Mabsūṭ. 4:16: requiring only some type of discretionary punishment (adhā) on two men who engage in male sodomy. In his celebrated work of law. the ḥadd sanction is not due. He outlined differences of opinion as to whether male sodomy falls under the technical definition of the ḥadd crime called zinā. 9:41ff.Abū Ḥanīfa’s position. It is to be avoided. 9:61. Mabsūṭ. 66. etc. 11:5986-87).31 His list of scenarios overlapped with. but added to. 29 30 See ibid. noting that some scholars assert that it certainly does and others insisting that it does not. notes 135-41.). 31 32 See Sarakhsī.29 The same. In addition to coerced sex and rape.30 Leading Ḥanafī scholars of the ensuing years developed the doctrine of shubha in their legal treatises by making it increasingly central to criminal law in both “Eastern” (Persian and Central Asian) and “Western” (Iraqi and Syrian) lands. the lists of Qudūrī and previous scholars.

ḥaqq al-milk.33 sex between a Muslim and non-Muslim. Ibid. Badāʾiʿ al-ṣanāʾiʿ. He folded the concept of shubha into the very definition of the substantive crime of zinā.slavewoman of a relative within the household on the mistaken belief that she was licit. Kāsānī is not just defining zinā. 9:61 (disagreeing with Zufar that the ḥadd is due in such cases on the basis that the offender’s subjective belief of legality created the type of shubha warranting ḥadd avoidance because he had some reasonable basis to think that he was entitled to have sexual relations with slavewomen in or belonging to those in his household) (citing as possible textual support: Qurʾān.35 The Syrian scholar Abū Bakr b. provided they are subject to Islamic law (iltazama aḥkām al-Islam). 275    . and early cases wherein ʿUmar purportedly avoided imposing the ḥadd punishment on a man who stayed as a guest in another man’s household in Yemen and spread rumors that he had sex with the lady of the house on the basis that the man had not understood that it was wrong).34 and sex between a man and the slavewoman belonging to a free woman with the claim or belief that he had bought her. 9:4150. and in the absence of the existence or semblance of a masterslave or marital relationship (ḥaqīqat al-milk.. They debated voluntariness and coercion. Kāsānī. 9:63. whether the parties                                                                   33 Ibid. 34 35 36 Ibid. and in the absence of doubt or mistake in areas of legitimate confusion about either (shubhat al-ishtibāh fī mawḍiʿ al-ishtibāh fī ʾl-milk waʾl-nikāḥ). Masʿūd al-Kāsānī (d. 65 (similar scenario). 587/1191) expanded the scope of shubha further. whether the relations were anal or vaginal.. but attempting to fold in the results of multiple juristic debates over the centuries about both the elements and conditions required to meet the technical juristic definition and/or to secure a zinā conviction. ḥaqīqat al-nikāḥ. making its absence an element of the crime itself.. or shubhat al-nikāḥ). wherein God tells the Prophet that he made him self-sufficient.36 Here. where the act occurred. 93:1. whether bestiality or necrophilia counted. He defined zinā as follows: voluntary non-anal sexual relations between a man and a (living) woman in Muslim territory (dār al-ʿadl). shubhat al-milk. the case of the slave who stole a mirror but was not ḥadd-eligible because he lived and had free access to the household from which the mirror was stolen. 9:66 (daraʾa ʿanh al-ḥadd).

commentary on Nasafī’s Kanz al-daqāʾiq (above). it is implicit that he defines the act as having been committed illegally. 9:4150-53 (noting that the following categories may not be ḥadd eligible: minors and the insane. see Ibn Nujaym (d. and on the margins Minḥat al-khāliq ʿalā ʾl-Baḥr al-rāʾiq by Ibn ʿĀbidīn ([Cairo?]. Nasafī (d. without a legally validating relationship. Ibn Nujaym commented that Nasafī’s definition was incomplete and underinclusive.38 (2) defective contracts. 5:4ff. or marriage to a woman while in the midst of her divorce waiting period from a prior marriage. or heterosexuality. sanity. 38 Ibid. such as the absence of majority. is “penetration of a penis into the vagina of a naturally desired woman: kawn al-ḥashafa fī qubul mushtahāt. 1893?). those who engage in male sodomy. Commenting on Ibn Nujaym’s formulation.39 (3) mistake of law. necropheliacs. this definition reflected certain positions held within the Shāfiʿī school that were not universally agreed upon. and where the law would entertain the plausibility of confusion or mistake.” he held that the additional “elements” are merely conditions (shurūṭ) that are not part and parcel of the essence of the act.37 For evidence. n. offered a simple definition of vaginal sex without a legally validating relationship (milk) and without shubha. Later jurists would offer competing definitions that added or dropped one or another of the elements or conditions (shurūṭ) for ḥadd liability on accusations of zinā. 710/1310). but that this is disputed by his two students Abū Yūsuf and Shaybānī. and the last items were meant to cover new scenarios of a similar type that were not specifically folded into the definition of the crime. All the items on the list were once (and some remained) matters of shubha. and that Zaylaʿī’s definition—with some modification—would be more accurate... For a discussion of these positions. Ibn ʿĀbidīn in turn attempted to collapse the definition even further. such as marriages between legally barred partners. 9:4253-55 (noting Abū Ḥanīfa’s opinion that such marriages required ḥudūd avoidance.had to be Muslim or not. for example. a man having sex with a jointly owned slavewoman. 970/1563). Ibid. what kind of relationships were legally validating.p. and Zaylaʿī combined this definition with that of Kāsānī for the following formulation: “voluntary—from both male and female perspectives—vaginal sex of a fully competent legal agent with a [naturally] desired partner whether now or in the past without a legally validating relationship or the semblance of one [committed] in Islamic territory: waṭʾ mukallaf ṭāʾiʿan mushtahāt ḥālan aw māḍiyyan fī ʾl-qubul bi-lā shubhat milk fī dār al-Islam aw tamkīnih min dhālika aw tamkīnihā.” We see that Zaylaʿī has added language to cover new scenarios (such as male rape) and reformulations to cover existing ones (such as “natural desire” to exclude bestiality and necrophilia). non-Muslims (ḥarbī)). such as a man having                                                                   37 As we will see. Ibn Nujaym offered the following formulation: “voluntary sex of a [male] legal agent in the vagina of a [naturally] desired [woman] without a legally validating relationship (milk) or the semblance of one: al-zinā al-mūjiba liʾl-ḥadd = waṭʾ mukallaf fī qubul al-mushtahāt ʿārin min milkih wa-shibhih ʿan ṭawʿ). but noting that in both cases. that is. His list includes the following unnamed categories of doubt or ambiguity (1) missing criminal elements.. rape victims. claims of 276  39   . he said. The basic definition of ḥadd-incurring zinā. we look to what he specifically enumerated as cases of shubha. al-Baḥr al-rāʾiq.

Burhān al-Dīn al-Marghīnānī (d. in the theory of criminal law.41 Kāsānī has named only two of these multiple categories specifically—legal mistake (shubhat al-ishtibāh) and contractual ambiguity (shubhat al-ʿaqd). Thus.. provided the mistake (ishtibāh) is plausible in that it rests on some legal basis that could fairly be said to have given rise to the belief of legality. Kāsānī’s contemporary in the East (Central Asia). Ibid. Ibid. but his aim is with a slavewoman belonging to his parents or held on security for another transaction. 9:4150 (idraʾū ʾl-ḥudūd biʾl-shubahāt). noting Zufar’s contrary opinion based on what he deemed to a type of reasonable supposition (ẓann) to give rise to a legal basis for ḥadd-averting shubha (li-annah yudraʾ ʿanh al-ḥadd).40 and mistake of fact in some situations—as in when the wrong woman is “delivered” on the wedding night after an arranged marriage—as was typical—held essentially in absentia. 42 43 41 40 Ibid.. gave shubha and the ḥudūd maxim a similar place of prominence in his                                                                                                                                                                                                 ignorance should suffice as evidence for lack of criminal intent as dictated by the ḥudūd maxim (li-annah yudraʾ [al-ḥudūd] biʾl-shubahāt)).. “ḥudūd sanctions are punishments for completed crimes. 593/1197). but shubha that rests on some legal basis and as such requires ḥadd aversion.”43 The ḥudūd maxim is an expression of this doctrine. also noting Abū Ḥanīfa and Abū Yūsuf’s opinion that there is no ḥadd avoidance for cases of illicit sex based on mistaken identity when the man could simply ask about the identity of the woman he claims to believe is licit. See ibid. 9:4156-57.” which “are not present with shubha. he explains “the principle in considering shubha is the ḥadīth ‘avoid ḥudūd punishments in cases of doubt. Any instance of shubha of whatever category—whether based on objective factors surrounding substantive criminal elements and legal bases for certain acts or subjective ones reflecting the offender’s state of mind—was subject to the rule of ḥudūd avoidance.’”42 In other words. In sum. 277    . because there is no text that can create the impression that there is any automatic right to enjoyment of siblings’ property. having sex with the slavewoman belonging to a brother or sister would not give rise to ḥudūd avoidance. Ibid. and finally. 9:4158-59 (noting that this is not legal doubt (shubhat al-ishtibāh) as some claim.

chapter on criminal law in a treatise that would become perhaps the most important work of Ḥanafī law in that it had enduring influence over Ḥanafīs of subsequent ages. 1791) (repr.45 The judge is not to simply accept the testimony at face value.46 “It may be that some act other than [the technical definition of zinā] occurred. interestingly—as he explains himself—his translation is from a Persian translation of the Arabic original. and explaining that the four-witness requirement gives meaning to the doctrine of concealment (satr) and publicity in that there would be ḥadd liability only for sex crimes so public that they were open to four witnesses observing the acts). supercommentaries. This work is famous in Western legal and colonial circles because of an 18th century translation by Charles Hamilton used to facilitate British colonial rule in India that accommodated Muslim family laws. trans. but is to ask each witness about what he saw. the method in which the sex act was performed. and place.” Islamic Law and Society 9. and glosses spreading from Central Asia to Arab lands.” Qurʾān. and a ḥadīth requiring four witnesses: iʾti bi-arbaʿa yashhadūna ʿalā ṣidq maqālatik. 2:735-36 (quoting Qurʾān.. Turkish lands to the Indian subcontinent. 24:4: defining defamation as those who make accusations of zinā but do not produce four witnesses to prove it: thumma lam yaʾtū bi-arbaʿati shuhadāʾ. or that                                                                   44 His treatise. Marghīnānī begins the section on criminal law by laying out not the disputed or requisite elements to meet the definition for zinā (as did his forebears). 2:736 (iḥtiyāṭ).44 In the Hidāya. “Marghīnānī: His Method and His Legacy. 278    . These evidentiary standards are stringent and Qurʾānically grounded: for zinā. along with an exhibited understanding of the technical meaning of zinā. as The Hedaya: Commentary on the Islamic Law (New Delhi: Kitāb Bhavan. a group of scholars gathered to discuss Marghīnānī at a conference organized by the Uzbekistan Academy of Sciences near his birthplace. what time. In November 2000. Hidāya (2000). where it occurred. 1985)). Meron. which explains the Persianized forms of his English renderings of technical legal terms from the Arabic. 46 45 Ibid. it requires four witnesses to the act by four reliable witnesses who offer uniform testimony as to the time. 4:15: “produce four witnesses from amongst yourselves [to prove accusations of zinā]: fa-ʾstashhidū ʿalayhinna arbaʿatan minkum. see Charles Hamilton. al-Hidāya. The Hedàya.. was the subject of numerous commentaries. This draws on the Prophet’s early precedent of questioning Māʿiz which set in place the requirement to approach ḥudūd accusations with caution. Marghīnānī. For further discussion of Marghīnānī and the legacy of his work arising out of that conference. and with whom. and beyond. or Guide: A Commentary on the Mussulman Laws (translated by the order of the Governor-General and Council of Bengal [Warren Hastings]) (London: T. Bensley. For the Hamilton translation. but by outlining evidentiary standards of proof to secure a conviction. 3 (2002): 410-16 (arguing that Marghīnānī’s thought was innovative and his writings represented a turning point in Ḥanafism that “shaped the destiny of [Ḥanafī] law for at least seven centuries after him”). see Y. manner.

48 Why? Because the Prophet himself directed judges to “avoid ḥudūd sanctions as much as you can.”52 As did Kāsānī. Marghīnānī gives that definition after discussing the evidentiary matters. (yastaqṣī fī dhālik iḥtiyāṭan liʾl-darʾ). The precise meaning of zinā that warrants a ḥadd sanction. Ibid.the act was committed in non-Muslim lands [for which there is no ḥadd liability in Muslim lands] or at a certain time [when the perpetrators were not liable]. the judge must exert the utmost effort to inquire about the circumstances surrounding the alleged crime and the character of the witnesses themselves with the express aim of avoiding the ḥadd sanction. he lists several cases of shubha scenarios that have arisen in prior legal debates amongst jurists. But he also defines shubha...”47 For these reasons. 2:748 (idraʾū ʾl-ḥudūd biʾl-shubahāt). 48 49 50 51 52 Ibid. Ibid. He delineates two types: mistake of law or fact (shubha fī ʾl-                                                                   47 Ibid. is the prophetic ḥadīth. the absence of shubha—on evidentiary or substantive grounds50—was regarded as a necessary element of the definition of zinā. (waṭʾ al-rajul al-marʾa fī ʾl-qubul fī ghayr al-milk wa-shubhat al-milk). “avoid criminal sanctions in cases of doubt.: without an ownership or quasi-ownership status].”51 Supporting that definition. 2:248 (taʿarrī ʿan al-milk wa-shubhatih). or there was otherwise some legal doubt (shubha) of which the accused or the witnesses are unaware … . (idraʾū ʾl-ḥudūd mā ʾstaṭaʿtum). 279    . he outlines. is “a man having vaginal sex with a woman without a legally validating relationship of semblance of one [lit. he says. Ibid. places the ḥudūd maxim front-andcenter.”49 As such. and the inclusion of the non-shubha requirement. and again. Ibid.

His discussion of specific terms is a restatement of those major debates and the dominant                                                                   53 Ibid. Ibid. because a contract provides a legal basis57 that gives rise to the belief of legality when an act is in fact illegal. depends on the offender. Ibid. 792/1390) considers this category bogus. 2:749-55.fiʿl.56 But he counts it under the first category. also known as shubha ḥukmiyya).58 Marghīnānī specifies that there are several types of shubha. he says.53 The first. (al-thāniya tataḥaqquq bi-qiyām al-dalīl al-nāfī liʾl-ḥurma fī dhātih wa-lā tatawaqqaf ʿalā ẓann al-jānī waʿtiqādih). Hidāya (2000). (dalīl). He recognizes a third type of shubha also—Abū Ḥanīfa’s contractual shubha (saying that it is established by contract—tathbut biʾl-ʿaqd)—but counts it under the first category. 4:148-49. Tanbīh. The Qurʾān defines marriage as between a man and an eligible woman— the categories of which it specifies.. attempts to marry legally barred women do not give rise to a contract and should not then create any type of shubha. See Ibn Abī al-ʿIzz. but none of his discussions of ḥudūd avoidance are as detailed as his treatment of zinā. but is an objective inquiry into the law. because a contract provides a legal basis (dalīl) that gives rise to the belief of legality when an act is in fact illegal. In his criticism of Marghīnānī’s work. (tathbut biʾl-ʿaqd). Ḥanbalī scholar (and student of Ibn Taymiyya and Ibn alQayyim) Ibn Abī al-ʿIzz (d. 55 56 57 58 Ibid.59 In listing then elaborating on each. He applies a similar analysis to wine-drinking and other areas of law on substantive and procedural grounds. 54 Ibid. 280    . as when one text renders an act legal and another marks it as illegal. Ibid. It refers to the mistaken belief that a legitimate textual or factual argument supports one’s position. (maʿnāh an yaẓunn ghayr al-dalīl dalīlan wa-lā budda min al-ẓann li-yataḥaqqaq al-ishtibāh).60 he is again detailing the debates and conclusions of earlier jurists on issues of ḥadd liability (here: for zinā) that arose after the early period. it refers to conflicts of legal texts. 59 60 Marghīnānī.55 He recognizes a third type as well—Abū Ḥanīfa’s contractual shubha—in saying that there is another doubt established by contract.54 The second does not depend on the offender’s state of mind. also known as shubhat ishtibāh) and legal ambiguity (shubha fī ʾl-maḥall. accordingly. Ibid. 2:748-49. because for him it plays with the Qurʾānic definitions of contract.

but he collapses contractual and legal ambiguity into a single category of legal uncertainty (shubha ḥukmiyya). In the 8th/14th century. and elaborates on the instances of shubha that have arisen in Ḥanafī law.63 He contributes a slight reformulation of the shubha categories. 1:563-66. Further. Ibid. 281    . except that he elaborates on each category and model case. by explicitly adding contractual shubha (shubhat fī ʾl-ʿaqd) to Marghīnānī’s categories of mistake (shubha fī ʾlfiʿl) and legal ambiguity (shubha fī ʾl-maḥall). Zaylaʿī in the “West”—in Cairo—pursued a similar tack. Nasafī in the “East”—from the Persian town of Nasaf—presents the same two categories and examples of each. 743/1343) elaborate on the categories of shubha that he identified. His work is like an abridgement of Marghīnānī’s. 3:539ff. giving the basic rules and laying out “model cases” of their application from prior precedents that had already been restated in earlier law (fiqh) works.Ḥanafī opinions surrounding ḥudūd avoidance. subsequent generations of Ḥanafī jurists mostly elaborate on his formulation.. 3:566-67. Kanz al-daqāʾiq. Ibid. 710/1310) and Fakhr al-Dīn al-Zaylaʿī (d. reiterates Marghīnānī’s explanation of how and why the doctrine of ḥudūd avoidance governs criminal law. Tabyīn. his distillation of those debates into two types of shubha is an attempt to organize the specifics into more general frameworks that could be useful for approaching new cases. Abū ʾl-Barakāt al-Nasafī (d..61 Commenting on Nasafī’s short work.64                                                                   61 Nasafī.62 He repeats Marghīnānī’s definition of zinā. 62 63 64 See Zaylaʿī. which includes the absence of shubha as an essential element. After Marghīnānī. 3:539-68. explaining that both refer to situations where the legal rule itself is unclear.

Badr al-Dīn al-ʿAynī (d. commented directly on both Marghīnānī and Nasafī’s works and their treatments of shubha. again taking Marghīnānī as a starting point often with respect to Nasafī’s reformulation. In that vein. 70-71. J. 282    .In the 9th/15th century. Law Reform in the Muslim World (London: Athlone Press. With the waning and breakup of the ʿAbbāsid empire in the 5th/11th century. 2nd ed. Islam. which typically refers to adherence to a school’s methodological principles and substantive rulings.. Anderson. the originally Turkish scholar who became a judge and prison official in Cairo. Ramz al-ḥaqāʾiq. and here is referred to as the “professional” period. Fatḥ al-qadīr. Bināya. See. 1964). 855/1451). Joseph Schacht. (Chicago: University of Chicago Press. 1966).N. Many scholars of Islamic law have long tagged taqlīd as nothing more than “blind imitation” and pejoratively dubbed the period one of stagnation and of the “closing of the gates of ijtihād.66 The period leading up to Kāsānī and Marghīnānī’s formulations of Ḥanafī doctrine through the 5th/7th century was a time of increased adherence to schoolspecific doctrines and expansion of those doctrines through commentary and gloss. London. these scholars argue plausibly that taqlīd was a                                                                   65 See ʿAynī. 7. e. 66 67 See Ibn al-Humām. 105-07 (noting that jurists had come to a tacit consensus in the early 4th/10th century on the “closing of the doors of ijtihād.65 His contemporary Egyptian colleague Ibn al-Humām (d.g.D. An Introduction to Islamic Law (Oxford: Oxford University Press. 77-78. 1976).”67 But a recent trend in scholarship on Islamic legal history has seen scholarship re-evaluating the function of the taqlīd doctrine during that period as a rule-of-law regime. 861/1457) comments on Marghīnānī’s formulation of shubha as well. Fazlur Rahman.” which led to societal retrogression and stagnation that manifested in the law in a dogged reliance on abridged law manuals (mukhtaṣars)). This was called the age of taqlīd. Falsafat al-tashrīʿ. idem. Maḥmaṣānī. other Ḥanafī jurists follow suit. 1966) (orig.

the contours of the law had not changed materially: the ḥudūd maxim was the central governing principle of criminal law and Ḥanafī jurists recognized specific types of shubha to which it applied through repeating                                                                   68 See Wael Hallaq. selfidentifying terms.” International Journal of Middle East Studies 16.” Under Siege: Islam and Democracy (Conference Proceedings). the radical diversity of the early period was reduced to the relatively few known. 2 (1996): 234ff.69 Beforehand. and predictability through increasingly corporatized schools of law that a radically decentralized state could not. the rise of legal maxims literature a couple of centuries later was the next and last major development in Islamic law. 283    . Boston: Brill. Throughout. “The Social Logic of Taqlīd and the Rise of the Mukhtaṣar. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (Leiden. it arguably contained possibilities for broadening that scope once again. enduring schools of law and theology. 69 For commentary to that effect. Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Muṭlaq and ʿĀmm in the Jurisprudence of Shihâb al-Dîn al-Qarâfî. and theology became professionalized disciplines—having been constituted in firm. Columbia University. “Was the Gate of Ijtihād Closed?. “Taqlîd.way of securing legal stability. legal maxims like the ḥudūd maxim were a shadow tool related to and folded into each of those disciplines and it was one area of continuing growth in legal methodologies. continuity. idem. Richard Bulliet (New York: Middle East Institute. 1996).68 Whatever the socio-legal function of taqlīd.” After this period. see Hossein Modarressi. legal changes seem to have slowed. with developed principles and doctrines. idem. “The Legal Basis for the Validity of the Majority Opinion in Islamic Legislation. substantive law (fiqh).” Studia Islamica 63 (1986): 129-41. 2 (1996): 195-233. 1 (1984): 3-41. It was at that point that the disciplines of ḥadīth studies. there was certainly a sense of narrowing in the methods and doctrines for legal derivation and interpretation after the “formative period” of the first four centuries.” Islamic Law and Society 3. ed. “On the Origins of the Controversy About the Existence of Mujtahids and the Gate of Ijtihād. 1993): 83ff. Mohammad Fadel.” Islamic Law and Society 3. during the age of taqlīd. Sherman Jackson. jurisprudence (uṣūl al-fiqh).

e.model cases and naming three categories of shubha in which they fell. Ḥanafī jurists next moved into a new phase in which they distilled the principles of the law even further. in his treatment of this maxim. In that vein. while the basic texts of the law treatises (mutūn) preserved the traditional opinions—illustrating the concern with the problem of landrent and tax assessments in Ḥanafī law). “Legal Literature and the Problem of Change.” by which he means to offer distinguishing principles for explaining different outcomes in cases with similar facts. but all within that basic framework. The title technically refers to “similar legal cases. following his earlier Ḥanafī forebears: (1) legal shubha (i. This was reflected in collections of legal maxims. 970/1563) authored what came to be Ḥanafism’s principal work on legal maxims. Beginning in the 10th/16th century. and explains the circumstances in which it applies according to the Ḥanafī tradition.. 284    . He divides shubha into three categories. Developed Ḥanafī Shubha Ibn Nujaym (d. The law did flex somewhat to reach new cases and cover new scenarios of shubha. his work collects essential legal maxims together with the distinguishing principles of Ḥanafī law. details the legal bases for it. he essentially summarizes Ḥanafism’s settled opinions on shubha. As with each distinguishing principle that he announces. which we know to be not unique to Ḥanafī law but defined distinctly within it.” 446-64 (arguing that legal change after this period came through commentaries and fatāwā literature. B. mistake or uncertainty regarding the legality of an act). In fact. Ḥanafī jurists compiled works devoted specifically to legal maxims that collected essential principles of law embodied in some of the earliest maxims like the ḥudūd maxim and explicated the Ḥanafī iteration of them. Ibn Nujaym provides a restatement of the principle.70 With this firm settlement of shubha. al-Ashbāh waʾl-naẓāʾir. Included in his collection is the ḥudūd maxim. (2) factual                                                                   70 See Baber Johansen.

and shubhat al-ʿaqd). the                                                                   71 Ibn Nujaym. The paradigmatic example given is the case of a father taking his son’s property on the mistaken belief that he is entitled to do so. jurists typically refer to the ḥadīth in which the Prophet declared to a young man that “you and your property belong to your father (anta wa-māluk li-abīk). As another example.shubha (i. To be reasonable.. For example. mistake of law or legal uncertainty. Mistake of law is an excuse—If Reasonable Legal shubha. al-Baḥr al-rāʾiq. see Ibn Mājah. is a subjective. shubhat al-ʿaqd for Abū Ḥanīfa refers to a shubha that arises from the presence of a contract itself and always gives rise to ḥadd-aversion. where the law itself is unclear to the legal agent. the Ḥanafī shubhat al-maḥall corresponds to the Shāfiʿī shubhat al-fāʿil or in zinā cases to shubha fī ʾl-mawṭūʾa. Sarāʾir. and refer to the Ḥanafī category of shubhat al-maḥall as shubha mawḍūʿiyya.e. that may give rise to ḥadd-averting shubha. Ibn Ḥanbal. For the ḥadīth in Sunnī and Shīʿī sources. including cases where a father sleeps with his son’s slavewoman.” See.” that is a defective contract. Sunan. where there is some mistake-of-fact on the part of the actor. 1.. as well as the same terms to refer to different concepts. As we will see. Ashbāh (shubhat al-fiʿl/ishtibāh. whereas for Shāfiʿīs and others. It covers cases. 285    . Shīʿī jurists refer to the Ḥanafī category of shubhat al-fiʿl or shubhat alishtibāh as shubha ḥukmiyya. but that the third type is disputed—having been first proposed by Abū Ḥanīfa but rejected by many of his school’s adherents. If a person has a reasonable basis for believing that an illegal act is legal. For a table comparing the various terms. 72 In justifying ḥudūd-aversion in such cases. it means the “semblance of a contract. offenderregarding type of doubt. 5:13. Ibn Idrīs al-Ḥillī (d. which in Shīʿī law is shubha mawḍūʿiyya. and (2) contractual shubha (i. Finally. A prophetic ḥadīth declaring that a son and his property belong to (or are under the care of) his father could provide a basis for a father’s belief—albeit mistaken—that it is perfectly legal to take his son’s property. Ibn Qudāma. and the ḥudūd maxim applies to require ḥudūd avoidance. Ibn Nujaym. Ibn Nujaym explains. He presents examples of each along with sundry examples of shubahāt that could fit into those categories. Musnad. Cf.71 He notes further that all Ḥanafīs recognize the first two as ḥadd-averting shubha.72 In such cases. 598/1201-2).e.. jurists use quite different terms to refer to similar concepts. the belief must rest on some textual basis. Mughnī. see Appendix. there is a shubha. I devise English terms to refer to these concepts while at the same time identifying where and how jurists discuss them in their own terms. 3:486. As such. ambiguities that may arise from a defective contract). 12:459 (together with two other ḥadīths).g. e. shubhat al-maḥall. mistake or uncertainty regarding the facts).

Tahdhīb. Collapsing property law with family law and sexual ethics. 74 75 See Qarāfī. Faqīh.g. the rule permitting master-slave relations did not apply to partially owned slavewomen. 1981). 2:79-80.. forming a near-consensus that carried the weight of precedent. 2:262-63. See. Bidāyat al-mujtahid. See Ibn Qudāma. Mughnī. n. 75 It is therefore reasonable for a person who does not know the intricacies of property law and joint                                                                   73 Classical Islamic family law recognizes marriage and creation of a master-slave relationship as the two legal instruments rendering permissible sexual relations between two people. 310/923). 9:552 (noting an objection from Ḥasan al-Baṣrī (d. e. Furūq. Bidāyat al-mujtahid. Not every scholar recognized the second instrument. It was disputed by prominent jurists and some theologians in Islam’s early period. Rawḍa).e. may appeal to the early rule allowing sexual relations between master and slave as a reasonable basis for his belief that the act was legal. 4:266-68 (alluding to the opinion of “some exegetes” that generalize the meaning of the Qurʾānic verse 4:24 to refer not to slave women but to chaste women. including sexual. in his defense. 4:24. Ibn Bābawayh.. 429/1037). Kulaynī. Under property law. Tafsīr. i. Kāfī. A second example is the case of zinā committed with a jointly owned slavewoman out of the mistaken belief that it is legal.73 But following property law restrictions on the enjoyment of jointly owned goods. 110/728)). see also Ṭabarī (d. which is deemed an infringement on the ownership interest of the other partner. Kitāb Uṣūl al-dīn (Beirut: Dār al-Āfāq alJadīda. for attestations to prophetic and imāmic sanction. implying a position against the notion that master-slave relationships automatically validate sexual relations). Ibn Rushd al-Ḥafīd. cf.d. see al-ʿAllāma al-Ṭabāṭabāʾī. it is considered “text” because most jurists interpreted the foundational texts to allow it. 4:1307 (shubha fī ʾl-mawṭūʾa). 286    . that the ownership is not absolute restricts the right of enjoyment. Although this rule does not have explicit Qurʾānic or prophetic sanction.). jurists conceived of the master-slave relationship as a type of contract rendering sexual relations between men and their slavewomen licit. Miqdād al-Suyūrī. Ibn Rushd al-Ḥafīd. For similar observations of objections amongst exegets. al-Mīzān fī tafsīr al-Qurʾān (Beirut: Muʾassasat al-Aʿlamī liʾl-Maṭbūʿāt. 160 (citing. 8:151-69 (interpreting Qurʾān. ʿAbd al-Qāhir al-Baghdādī (d. Naḍd al-Qawāʿid.” provided the father lacked knowledge of the actual law and the criminal intent to violate it.maxim requires ḥadd avoidance for the “theft. the 1st/7th through 3rd/9th centuries.74 An offender. 336 (noting the objections of some Muʿtazilīs (rationalist theologians)). and other verses to require a slavewoman’s consent before sexual relations with her master will be deemed permissible).

Islamic law unambiguously prohibits wine-consumption. Knowing impermissible takings or sexual relations cannot give rise to ḥadd-aversion. and sleep with the woman lying there. a man might retire to bed at night. Tajrīd. What happens if a person finds a reddish liquid in front of her? If she has strong reason to believe that the liquid is juice rather than wine. Mistake of fact also is an excuse—if plausible Factual shubha. As both examples illustrate. the maxim does not apply until and unless she has made diligent attempts to ascertain what it is. but she turns out not to be? For example. the maxim applies to remove ḥadd liability. For instance. 2. where the newlyweds do not meet until the wife comes to the husband’s                                                                   76 Qudūrī. What does the law say about a man who has sexual relations with a woman whom he thinks is a legitimate partner. Islamic law unambiguously limits sexual relations to partners in a recognized legal relationship. this type of shubha is subjective in that judges must look to the offender’s state of mind to determine ḥadd-eligibility. even if mistaken. Here too. Or there might be an arranged marriage. 11:5899. mistake of fact or factual uncertainty.ownership as applied to slavewomen to extend that rule. otherwise sexual acts are considered ḥaddincurring zinā. but mistake—given the apparent ambiguity of the law—can.76 Ḥanafī jurists elaborated on this principle of due diligence especially in cases of mistaken identity in zinā laws. the ambiguous law and textual support for the mistaken belief created a ḥadd-averting shubha. covers cases where the law is clear but the actor confuses the facts. 287    . mistakenly thinking that she is his wife or slavewoman. But if she is unsure what the liquid is.

Only Abū Ḥanīfa and those following his opinion in the Ḥanafī school question whether ḥudūd avoidance is warranted here automatically. ibid. For Mālikī discussions. who would not be legitimate sex partners. In short. Ibid. (mujarrad alishtibāh laysa bi-shubha. said in response to the Shāfiʿī argument that the ḥudūd maxim (idraʾū ʾl-ḥudūd biʾlshubahāt) applies here). 11:5899 (saying that this type of ẓann is baseless (lā yastanid ilā sabab ṣaḥīḥ)). Kāfī.. ed. 2:1074. Abū Isḥāq al-Shīrāzī. Damascus: al-Dār al-Shāmiyya and Dār al-Qalam. 1997). one 5th/11th century jurist explained that in his time. Moreover. the mistake is especially unreasonable because it is typical for a single household to house unrelated women and female relatives. e. the husband relies on information he receives from those responsible for bringing his wife to him. On the wedding one may not rely on baseless suppositions to avert the ḥadd punishment. 288    . as spouses are intimately familiar with one another—from voices to mannerisms and other identifying features. al-Wasīṭ fī ʾl-madhhab. Abū Ḥāmid alGhazālī.77 Many Ḥanafīs recognize only the scenario of mistaken identity on the wedding night as giving rise to ḥadd-averting shubha. 1996). see for instance.. Aḥmad Maḥmūd Ibrāhīm and Muḥammad Muḥammad Tāmir ([Cairo?]: Dār al-Salām. see. This fact alone should encourage the husband to simply ask if he has any doubts about the identity of a woman found in his bed or anywhere else in the house before sleeping with her. Ibn ʿAbd al-Barr.78 But thereafter. al-Muhadhdhab fī fiqh al-Imām al-Shāfiʿī. 78 79 Qudūrī. 6:444. it is unreasonable to suppose that a man would not know his wife from another woman lying in his bed. Tajrīd. and the couple does not discover until after consummating the supposed marriage that the woman who arrived was not the one with whom the man has just entered a marriage contract. ed. In both scenarios. Muhammad al-Zuḥaylī (Beirut. shubha that may arise from mistaken identity is only available if plausible. 11:5900 (external information as biʾl-khabar).79                                                                   77 For Shāfiʿī discussions. Their announcement provides a reasonable basis for him to believe that the woman brought to him is his wife.g. most jurists avert the ḥadd punishment for zinā.

81 Shubha that arises in cases of mistake-of-fact is partially subjective. Ashbāh.This rule follows the minimum requirements of due diligence elaborated in other contexts of the law. whereas they do not in cases of mistake-of-law. however. except that the erroneous argument on which the offender relies is not a textual argument but an evidentiary one (i. Qudūrī explains that the key element to be considered (al-muʿtabar) is the legal cause (sabab) that triggered the mistaken belief. the information received from women that the woman who came was his wife). Ibn Nujaym does not discuss this case in his work on legal maxims. he must ascertain the proper direction by going to a local mosque or simply asking those in the vicinity when possible. are mistakes of law in that they rely on some legal basis. and does not place it in any category when he discusses it elsewhere. Tabyīn al-ḥaqāʾiq.. There is some dispute as to whether the case of mistaken identity in zinā is properly categorized as mistake-of-fact or mistake-of-law. See Ibn Nujaym. 9:4153. The additional element here is a due diligence requirement. For the prayers to count.. 11:5900 (negligence as tafrīṭ). Badāʾiʿ alṣanāʾiʿ. Kāsānī points out that mistaken identity is not mistake-of-law (shubhat al-fiʿl or al-ishtibāh)— and presumably must be mistake-of-fact instead—because legal consequences such as paternity flow from mistaken identity-relations.82                                                                   80 Ibid. See Zaylaʿī. 5:15. a visitor or newcomer may not simply assume the direction.e.80 So too in the context of sexual relations. saying that mistaken identity is an instance of mistake-of-law (shubhat al-fiʿl or al-ishtibāh). 81 82 Ibid. both. For example. In this sense. whether textual or evidentiary. 3:568. to ascertain the proper direction for performing prescribed prayers. the shubha that arises from reasonable mistake-of-fact becomes very similar to the shubha that arises from reasonable mistake-of-law in that reasonableness and plausibility are key. Kāsānī. Zaylaʿī disagrees. Comparing mistaken-identity after reliance on information to defective contracts that create ḥadd289    . Similarly. failure to investigate is negligence and bars claims of shubha. al-Baḥr alrāʾiq. in that ḥadd-liability depends on conflicting textual arguments combined with the offender’s state of mind. Inquiring about the facts produces information that provides a legal basis for the mistaken belief that a questionable act is in fact legal. as it is with mistake-of-law. This explains why paternity results here and not in mistake-of-law cases that rely on textual arguments.

Accordingly. Tajrīd. Jurists unanimously hold that such contracts are defective. Contracts in any system create legal obligations and validate certain status relationships. where there is a semblance of a valid contract. For example. that is. For him such marriage contracts are defective and thus voidable. 1:128 (noting Abū Ḥanīfa’s rule of ḥadd aversion by shubhat al-ʿaqd even when the contracting parties know of the illegality of marrying a closely-related relative (maḥram) and there is no mistake as to their identities). Qudūrī. such as the marriage contract.83 but still create at least the semblance of a contract (shubhat al-ʿaqd). he maintains. 290    . Creating mistake through contract Contractual shubha is the third.3. Ordinarily. Qudūrī reasons that the information provides some legal basis for the erroneous view of permissibility just as the contract does. a marriage contract between siblings. in this case exculpating parties from accusations of zinā. either because the subject of the contract is illegal or the contracting parties are legally ineligible to conclude a marriage contract with one another. even though Islamic law prohibits incestuous marriages and sexual relations. this debate has implications for the determination whether shubha exists and thus whether imposition of the ḥadd punishment is warranted. Abū Ḥanīfa extended this norm to marriage law in his position that the semblance of a marriage contract should provide protection as well. He applied this rule even where contracting parties enter into a contract knowing of the material defect.84 Abū Ḥanīfa applied a similar logic to the case of sexual relations                                                                                                                                                                                                 averting shubha for some Ḥanafīs (as discussed below). disputed category. As we see here. Ashbāh. But they debate whether the contract is per se void (bāṭil) or merely voidable (fāsid). the law of contract provides some protection for defective commercial transactions pursued in the mistaken belief that they were done under color of a contract. averts any ḥadd punishment from the couple. 84 83 Ibn Nujaym. Abū Ḥanīfa held that legal permissions that ordinarily flow from a valid contract create a ḥadd-averting shubha when a contract is materially defective. 11:5900.

after minimum due diligence) to strict adherence to clear ḥudūd norms (rejecting contractual shubha that violated clear norms). alongside the values that these laws were supposed to vindicate. In Ḥanafī law. But rather than tracing this process jurist-by-jurist over time (as above in the Ḥanafī context).B. III. In all categories. The subjectivity of Ḥanafī shubha as mistake therefore accompanied somewhat objective measures. as jurists placed knowledge and intent front and center. Shubha as Subjectivity Mainstream Ḥanafism defined shubha on a scale that moved from reasonableness (mistake-of-law. The lack of either created a ḥadd-averting shubha—provided the mistake was reasonable and the violation unknowing. this mixed approach prevailed over Abū Ḥanīfa’s proposal to disregard subjective elements and further limit ḥadd liability through the law of contract. It will concentrate on significant contributions of major jurists within each school toward the construction of school-specific concepts of shubha.with a slavewoman held as security and to other areas at the intersection of commercial law and family law. the following discussion will offer a brief summary of developments in the Mālikī and Shāfiʿī schools.2 (“Primacy of Contracts”). and mistake-of-fact. Accommodation and Legal Pluralism: Mālikī and Shāfiʿī Shubha The centralization and elaboration of the ḥudūd maxim within Mālikī and Shāfiʿī law followed a very similar trajectory to the Ḥanafī arc.85 C. The differences arose in what shubha came to mean in each school over time. if textually supported. II. this meant an implicit mens rea requirement. 291    . see Chapter 3.                                                                   85 For discussion.

60 (applying the ḥudūd maxim as a ḥadīth to several cases).87 Ghazālī is the first to delineate three categories of shubha recognized by                                                                   86 See. innahu yudraʾ ʿanh al-ḥadd (noting that the mistaken belief in the legality of having sex with a son or daughter’s slavewoman also warrants ḥadd avoidance). 1079-87 (same. 207-15. e. 16:324 (detailing a scenario of ḥudūd avoidance from the early period and citing the maxim as a prophetic ḥadīth). Shāfiʿī jurists begin to expound on the doctrine of shubha in earnest through Abū ʾl-Ḥasan al-Māwardī (d. esp. Their expansive doubt jurisprudence was picked up by the Cordoban jurist Ibn ʿAbd al-Barr (d. Kāfī. Bidāyat al-mujtahid. 505/1111). see Bājī. Ibn Rushd al-Jadd. Ḥāwī.The centralization and gradual development of the ḥudūd maxim in Mālikī law began in the early period in Andalusia with Ibn al-Qāsim. Dhakhīra. 463/1071) and subsequent Mālikī jurists elsewhere.. Abū Bakr Ibn al-ʿArabī (d. Bayān. 684/1285) is the first Mālikī known to pen a major work of legal maxims and further elaborate the categories of Mālikī shubha. 87 See Māwardī. Muntaqā. 1075-78 (same. Ibn Rushd al-Ḥafīd. 2:297 (citing the standard formula).g. 1088-89 (same. 543/1148). 632 (discussing differences of opinion on what constitutes ḥadd-averting shubha for zinā accusations: ikhtilāfuhum fīmā huwa shubha tudraʾ [bi-hā] ḥadd al-zinā). for theft—listing mostly model cases of evidentiary shubha). with expositions of shubha in 5th/11th century Iraq. idem. Māwardī analyzes what he takes to be the ḥadīth giving expression to the maxim and details instances wherein it applies both in his law treatise (often with reference to the early cases presented in Chapter 2) and his work on legal-political theory.. as discussed in Chapter 3. 175-76. 2:604 (folding in the absence of shubha into the meaning of theft). for wine-drinking). and passim). who detailed instances of shubha that mimicked Ḥanafī scenarios but gave the Mālikī rulings. Ibn Ḥabīb and his colleagues. Qarāfī (d. for defamation (qadhf)). Similar process of centralizing and elaborating upon the ḥudūd maxim in the Shāfiʿī context began sometime later than in Mālikī law. 684/1285). 1:205.86 As we will see. For leading Mālikīs of subsequent periods through the rise of their wellknown treatises on legal maxims beginning in the 7th/13th century. Ibn ʿAbd al-Barr. 9:175 (explaining Mālik and Saḥnūn’s holdings of ḥadd aversion with respect to early cases presented in ḥadīth sources with reference to the ḥudūd maxim: wa duriʾa ʿanh al-ḥadd bi-dhālik (noting a rule of ḥadd avoidance for the mistaken belief that a man may make it legal for another man to have sex with his slavewoman just by giving verbal permission). 12:50-51. al-Aḥkām al-sulṭāniyya. 9:168-71. 2:324 (citing the ḥudūd maxim as a prophetic ḥadīth and instances of its application). Shihāb al-Dīn Qarāfī (d. Aḥkām al-Qurʾān. 450/1058) and Abū Ḥāmid al-Ghazālī (d. see also ibid. 292    . 232. 250. 2:1069-73 (listing instances of shubha involving zinā).

Qawāʿid. As a result. see Shīrāzī (d. Rāfiʿī.88 Subsequent Shāfiʿī scholars build on their notions and provide details to further refine the shubha categories up to and following the rise of the Shāfiʿī legal maxims literature in the 7th/13th century. in it. Mālikīs and Shāfiʿīs added an additional category of shubha to the existing categories known from the Ḥanafī school and from earlier periods.. 915/1508). he does so with specific reference to the laws of zinā.g. 660/1262)—colleague and rival to Qarāfī who was developing maxims in the Mālikī context—was the first Shāfiʿī to author an enduring work of select legal maxims designed to include only the most important principles of Islamic law according to Shāfiʿī thought. For Shāfiʿī discussions of the ḥudūd maxim and shubha amongst leading jurists during the period leading up to the rise of legal maxims literature. ʿUdda. Wajīz. 11:144-50 (citing the ḥudūd maxim as a prophetic ḥadīth. See. Minhāj. shubha fī ʾl-fāʿil. the ḥudūd maxim figures prominently. Remarkably. 18:375. Rawḍa. Developing Mālikī and Shāfiʿī Shubha Mālikīs90 and Shāfiʿīs91 divide shubha into three substantive categories. This new category may be called “interpretive shubha” to refer to the type of doubts and ambiguities that arise from juristic differences within and across legal schools. 7:306-13. concerned as they are with differences between legal principles as applied on a case-by-case basis rather than the overarching definitions of the maxims and their scope.. 3:206. as discussed below. Majmūʿ. One of the few (and earliest) to define the categories in the Mālikī context is Qarāfī (d. Muhadhdhab. The principal Mālikī compilers of legal maxims do not break down the categories of shubha. 385. 145). 2:167.g. and shubha fī ṭarīq al-ibāḥa). e. Maqqarī̄ (d. though 293    90 89 . 6:443-46 (quoting the standard formula: idraʾū ʾl-ḥudūd biʾl-shubahāt and detailing three categories of shubha under Shāfiʿī law as shubha fī ʾl-maḥall. ʿAzīz. idem. 684/1285) in his Furūq. on p. there is less terminological diversity in Mālikī categories than in Ḥanafī and Shāfiʿī contexts. Ḥilyat al-ʿulamāʾ.89 As we will see. Wansharīsī (d. al-Qaffāl alShāshī. 8:7-15. The idea that interpretive differences could give rise to ḥaddaverting doubt was new. e. idem. Two align loosely with the mainstream Ḥanafī categories of mistake-of-law and mistake-of                                                                  88 Ghazālī. Nawawī. Wasīṭ. see also idem. 758/1357).Shāfiʿī law. Ibn ʿAbd alSalām (d. It seems to have rested on the different social and historical contexts in which these schools developed as distinct from those of the Ḥanafī school. 476/1083). in both strands of developments. 5:385. A.

juristic difference (shubha fī ʾl-ṭarīq or shubhat al-khilāf)). Suyūṭī (d. and (b) sexual relations with a slave without full ownership. these jurists find ḥadd-averting shubha in these cases to prevent punishment for theft or zinā. See Qarāfī. The categories go by different names but fall into the same four categories as in the Mālikī case. For the second case. see. Suyūṭī identifies the following three substantive types of shubha: mistake-of-law (shubha fī ʾl-fāʿil). 11:14547 (shubha fī ʾl-jiha waʾl-ṭarīq for juristic difference). A third category is new: interpretive shubha that arises from juristic differences over questions of legality. 7:306-12 (shubha fī ʾl-jiha for juristic difference). Ibn Rushd al-Ḥafīd. 1. Mistake of law is an excuse for the layperson Mālikīs and Shāfiʿīs follow some aspects of Ḥanafī conceptions of mistake-of-law but add additional provisions for ignorance. Ibn ʿAbd al-Salām (d. Wasīṭ. shubha fī ʾl-mawṭūʾa. 676/1277). As in the Ḥanafī context. 660/1262). and fiqh works such as Ghazālī (d.) Before moving to this third. ʿAzīz. see qawāʿid works such as. Ibn Rushd al-Ḥafīd. cf. Qarāfī. we review the Mālikī and Shāfiʿī differences in the categories they share with Ḥanafīs. For other labels. Ashbāh. 623/1226). and shubha fī ʾl-ṭarīq as interpretive ambiguity. shubha fī ʾl-wāṭiʾ as mistake-of-fact. Rawḍa. 911/1505). (Altogether rejected is Abū Ḥanīfa’s category of contractual shubha. 4:1309. 237 (not labeling shubhat al-maḥall). 2:279-80 (in the chapter Qāʿida fī ʾl-shubahāt al-dāriʾa liʾl-ḥudūd: shubha fī ʾl-fāʿil. e. and shubha fī ʾl-sabab al-mubīḥ liʾl-waṭʾ. For the first case. Bidāyat al-mujtahid. For Mālikī positions. in line with “unanimous” opinion of the jurists). shubha fī ʾl-maḥall. Bidāyat al-mujtahid. Furūq. 505/1111). Nawawī (d. the same precedential rule permitting master-slave relations also provides textual support for the mistaken belief that partial owners are entitled to exercise the same license. 4:1307-09 (al-farq bayn qāʿidat mā huwa shubha tudraʾ bihā ʾl-ḥudūd waʾl-kaffārāt wa-qāʿidat mā laysa kadhālik).g. Qawāʿid. Rāfiʿī (d. 6:443-44 (shubha fī ʾl-fāʿil.92 So far. where there is a reasonable textual basis for the mistake.. both rules align to a common conception of mistake-of-law.                                                                                                                                                                                                 he means to include crimes other than zinā in these categories: shubha fī-al-mawṭūʾa as mistake-of-law. shubha fī ṭarīq al-ibāḥa).fact. mistake-offact [shubhat al-maḥall]. except fathers taking from sons. more complex category. Recall the two cases of (a) a father taking money from his son. 2:261-62 (noting Mālik’s position that the ḥadd punishment for theft applies to anyone who steals from a relative. Furūq. the same ḥadīth mentioned in the Ḥanafī context provides textual support here for the belief—although mistaken—that such takings are legal. 2:633-34 (extending this rule to cover instances of a father having intimate relations 294    92 91 .

2:280 (in passing). Suyūṭī. the law can be too complex to expect that a layperson can or will be aware of all its details. 684/1285). For Mālikīs. For further discussion. For Shāfiʿī positions.95 Specifically with respect to criminal law. Muṣṭafā Ḥusaynī Dashtī (Tehran: Muʾassasa-i Farhangī-i Ārāya. who authored his school’s central work of legal maxims. ignorance twice-justifies ḥadd-aversion in these cases. Qawāʿid.What if a legal agent is simply ignorant of the law? Mālikīs and Shāfiʿīs hold that ignorance may also create instances of shubha. Broadly. Ashbāh. the agent lacks the criminal intent to violate the law. explains why. see Chapter 6. the fiction provides the strongest rule-of-law justifications for penal                                                                                                                                                                                                 with his son’s slavewoman. ed. and second. 1381/[2002-]). albeit by different justifications. Qarāfī explains in Furūq. Ibn ʿAbd alSalām. Shihāb al-Dīn al-Qarāfī (d.93 Qarāfī further elucidates structural reasons to explain why mistake and ignorance of the law create a ḥadd-averting shubha: simply put. 4:1307. he or she lacks awareness that the law potentially or actually prohibits the acts. See Muḥammad Riḍā Muẓaffar.94 This observation. Qarāfī. 295  94 95   . also as agreed upon by jurists). the fiction is a necessary pillar of the rule-of-law principle of legality. This position [that the law is too complex to expect that a layperson can or will be aware of its contours] is a striking exposure of the chimerical nature of the common legal fiction imputing popular knowledge of the law to laypeople.g. Manṭiq. First. see. which requires that no act may be punished without first giving notice of the law. 237.. which means being ignorant about a matter (here: legality) and unaware of one’s own ignorance (here: the fact of violating the law). 93 Thus mistake of law is compound ignorance (jahl murakkab). Furūq. will be taken up in the section discussing interpretive shubha. which recognizes unique challenges of legal interpretation in a system of legal pluralism. The most prominent Egyptian Mālikī jurist of the 7th/13th. e. 4:1309.

This concern reveals itself repeatedly in doubt jurisprudence in discussions of the ḥudūd maxim. that is. Qarāfī’s concern stems from more than just recognition of the heightened criminal law principle of legality and of the complexity that accompanies every sophisticated legal enterprise. They relied then heavily on the criminal law legality principle as a safeguard against oppressive or unfair sanctions. It also stems from his attention to the particular difficulties presented by Islamic legal pluralism. Jackson. Islamic Law and the State. he was often forced to consider and apply laws based on the legal school to which litigant adhered. As discussed in the review of death-is-different jurisprudence. Arguably.96 Muslim jurists acknowledged the particularly high stakes in criminal law. 97 Cf.sanctions. but no reliance on that basis.97 In sum. When there is a legal basis— albeit erroneous—for mistake. 296    . which required determining what he or she knew or should have known.B. to prevent harsh punishments against people who had no notice of what the law was. The Mamlūk state in which he worked as a judge—which had official positions for each of the four main Sunnī schools of law—made him particularly attenuated to these realities. Section III. Competing alongside the other legal schools. He was head of the Mālikī legal school in a system dominated by the Shāfiʿī law. Qarāfī’s explanation of the Mālikī insistence on averting sanctions in cases of ignorance of the law is an attempt to vindicate this principle. 178-81. taken at face value and to its logical conclusion. where ḥudūd sanctions mean a loss of life or other harsh consequences. there is no shubha and the                                                                   96 See Chapter 2. Here. Mālikī positions reveal a concern with a combination of objective elements—what the law is—with subjective elements—whether the offender knows what the law is—when considering the question of shubha.

master-slave sexual relations without full ownership. 2:137. Note that this follows other common definitions of the purposes of law.”). In cases of ignorance. and the act committed is no more than a mistake. The conceptual distinction between Sharīʿah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God. 2:262-33. just and equitable. Ibn Rushd al-Ḥafīd. Conceding that sexual relations in this case technically cannot be called illegal. 32 (“The Sharīʿah is God’s Will in an ideal and abstract fashion.”100 To be sure.. but the fiqh is the product of the human attempt to understand God’s Will. he maintains that they can be considered harmful under a larger umbrella legal principle. but the fiqh is only an attempt at reaching the ideals and purposes of Sharīʿah (maqāṣid al-Sharʿīah). Makkī. e. Ibn ʿAbd al-Salām. Qarāfī’s contemporary and Shāfiʿī jurist Ibn ʿAbd al-Salām adds a moral component to the analysis in his central work of legal maxims. In this sense. only when there is reliance upon some legal basis or complete ignorance of the law itself do jurists avert the punishment by a finding of shubha. Usually this applied to universal maxims. cf. For a discussion.98 For Shāfiʿīs. with which Ibn ʿAbd al-Salām would have been well-familiar. as it is only illegal to violate the law knowingly. 4:1307 (shubha fī ʾl-mawṭūʾa). 1:6.g. Speaking in God’s Name: Islamic Law. the harm here is not that of outright zinā. Ibn ʿAbd al-Salām sought to do this in his book of legal maxims. 297    100 . According to the jurists. This was arguably the culmination of a long-standing attempt to reduce Islamic law to a set of principles that expresses the central spirit of the law. where illicit                                                                   98 Qarāfī. the purpose of Sharīʿah is to achieve the welfare of the people (taḥqīq maṣāliḥ al-ʿibād). is neither legal nor illegal. Bidāyat al-mujtahid. 2001). and the purpose of fiqh is to understand and implement the Sharīʿah. the first to do so was Dabbās as told in the story by Suyūṭī. see also Khaled Abou El Fadl. ignorance of the law affects the status of the law itself with respect to the offender. His position reflected his overall philosophy that all of Islamic law could be reduced to a single overarching maxim that covers all acts: its purpose is to “promote the best interests [of humans agents] and avoid harm. Authority and Women (Oxford: Oneworld. Ignorance removes the element of knowledge. 99 See. Furūq. Ḥāshiya. Qawāʿid. in the interest of the common good or that of human beings (taḥqīq maṣāliḥ al-ʿibād).99 Unsatisfied with this morally subjective view of the law. the Sharīʿah is always fair.ḥadd punishment is due. that is.

if someone takes property. outright zinā as zinā maḥḍ). Mistake of fact also can be an excuse – regardless of intent The second type of shubha corresponds to the Ḥanafī mistake-of-fact category. finding shubha in cases of ignorance of the law. see also Suyūṭī. Ashbāh. This too is a mixed view: objective in taking the law as the starting point. sufficient to avert any ḥadd punishments provided there is no knowing violation of clear laws. For example. Shubha arises in both cases. Furūq. Shāfiʿīs come close to Mālikī positions on doubt. such acts are to be avoided because they serve no legitimate interest and come so close to zinā—minus the intent element—that they are morally wrong. the law gives jurists broad leeway for findings of shubha—                                                                   101 Ibn ʿAbd al-Salām. he suggests that even where the law is unclear.. Ashbāh. The implication is that a mere claim of lack of intent or mistaken belief suffices to create a shubha for a judge to avert the ḥadd punishment in these cases. but in practice. For the zinā case of mistaken identity previously discussed. Shāfiʿīs take a theoretical stance that appears to make the legality of an act relative to the individual offender’s knowledge of legality. 237. and thus makes no provision for punishment as a matter of law. 4:3107 (shubha fī ʾl-wāṭiʾ).101 Yet. 2.g. This moral gloss has little practical effect in the case of joint slave ownership and similar cases. Mālikīs hold that ḥadd liability is removed because of the existence of a shubha by mistake-of-fact. 103 102 Qarāfī. or a couple without a legally validating relationship claims to have one (or mistakenly thinks they do). claiming that the stolen item belongs to him (or mistakenly thinks that it does). covering situations where the law is clear but the facts confused. Suyūṭī. 103 For them. e. they approach the law as do the Mālikīs in cases of mistake or ignorance. but subjective in considering the individual litigant’s knowledge of it. 2:279 (harm as mafsada.sexual acts are committed in clear violation of the law. unlike the qualified Ḥanafī position.102 On balance. 298    . the claim or mistaken belief is enough to avert the punishment for theft or zinā respectively. See. Qawāʿid. 237.

without imposing duties of diligence. They hold that ḥadd liability is canceled punishment in both cases (of newlyweds and mistaken identity in the home). Shīrāzī. without imposing additional requirements of diligence on the agent—which increases the subjective component of the law. the factual confusion removes the criminal intent to violate the law. Muhadhdhab. 299    . Only when it is intentional may the victim’s family petition the courts for the death penalty—provided there was equality of social-legal status between the                                                                   104 See.. Ibid. Islamic law imposes penalties for homicide graded according to whether the act is intentional. accidental. they take the law at face value. Here. some Shāfiʿīs apply the mistake-of-fact category of shubha even more expansively to cover situations where there is no specific criminal intent even though there might be general intent. Even though the law is known.g. 2:279 (noting that paternity from any child born of the relations attaches to the man. For example. Ibn ʿAbd al-Salām explains that couples in these cases engage in innocuous activity under color of shubha as confusion or mistake. and she is entitled to dowry (mahr)). 2:279. For Shāfiʿīs too. the same legal consequences that would have flowed from the intimate relations under a valid marriage contract attach here too.. they maintain. in that the agent can claim shubha without any objective means for verifying whether it was justified. al-Qawāʿid al-kubrā. 6:444. Ghazālī. the woman must go through a divorce waiting period (ʿidda). creating a reasonable shubha. For identical reasons.whether a new wife comes to the home or a man mistakes the woman lying in his bed for his wife or slavewoman.104 The ḥadd punishment is averted. or quasiintentional.105 In other situations. the law will therefore not punish them where they lacked sinful intent—the moral equivalent of lacking mens rea to commit the crime. the general tendency is to be expansive in considering mistakeof-fact shubha. 5:380. because there has been no actual violation of the law. e. Wasīṭ. 105 Ibn ʿAbd al-Salām.

note 37 and accompanying text. Sunan. 218-19 (ascribing to the first three caliphs the position that killing non-Muslims. 300    . whereas a Muslim who kills a non-Muslim is not. Alternatively. because it signals lack of specific intent even though the perpetrator knew that the act of homicide is criminal and thus had the general intent to violate the law. 237 (citing Nawawī. Naṣrānī. which is the same remedy available when there is no status equality and in non-intentional cases. and noting Abū Ḥanīfa’s extension of the rule to the Mājūs). Siyar. but if he knows of the illegality but is (simply) ignorant of the ḥadd or other punishment (due) he receives the ḥadd or other                                                                   106 This was the general baseline rule amongst most early Muslim jurists. Āthār. and Yahūdī. 15. Rawḍa) (equality of status as mukāfaʾa). 107 Suyūṭī.107 For them. receives no ḥadd punishment. from which early Ḥanafīs diverged. See. some Shāfiʿī jurists hold that a person who commits murder is not subject to retaliation if he does not know that the victim was Muslim or free. see Fierro. Bayhaqī.700. that is. Hudhayl. the mistake or ignorance about the victim’s identity suffices to avert the ḥadd. For them. rendered a Muslim death eligible. Shaybānī. Other Shāfiʿīs considered this rule a bizarre divergence from the general principles governing ignorance of the law. including the muʿāhad.106 Extending the rule of mistake-of-fact shubha here.g.murderer and the victim. “whoever is ignorant of the illegality of an act that obligates a ḥadd or some other punishment. see also chapter 1. Under these rules. the victim’s family may request blood money calculated according to the deceased’s status. Ashbāh. if he mistakenly believed the victim’s status to be subordinate to his own. “When Lawful Violence Meets Doubt. Dhahabī. 8:31.” 222.. For an English-rendering of the story. e. Mahdī). reporting the story as related by ʿAbd al-Raḥmān b. and commits the act. the third most prominent of Abū Ḥanīfa’s companions. no. reportedly retracted it. The Ḥanafīs were criticized for this rule until Zufar. a Muslim who kills another Muslim is subject to the death penalty. 8:40-41 (entry for Zufar b.

1:382 (this is true even where evidence is subsequently produced. B. is the most complex category. (Beirut: Dār al-Kutub al-ʿIlmiyya. both expose the unpredictability of the law and the fiction of knowledge of it—as a prelude to constructing a robust doctrine of legal pluralism.g. as in where a victim thought to be a slave had in fact been freed before she was murdered or the victim thought to be a non-Muslim was in fact Muslim or had converted. interpretive ambiguity..punishment (due). he is still eligible for the death penalty in retaliation. al-Ashbāh waʾl-naẓāʾir. so the ḥudūd maxim would play a role. and (2) there is no legal violation where the law is unclear. they adopt an approach that supposes: (1) it is hard to know the law. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad ʿAwaḍ. Accordingly. Tāj al-Dīn al-Subkī. even if such acts do not violate the technical letter of the law. which regards as                                                                   108 E.109 Ibn ʿAbd al-Salām would agree. tied as it is to the very methods and structure of the Islamic legal system. 882. 2nd ed. ed. His general intent is enough to invoke criminal liability. Claimed ignorance here would not be reasonable. Neither imposes the duty of absolute diligence to discover the law. 301    109 . 1991) 1:381. Interpretive Ambiguity and Legal Pluralism The third category of shubha. for he knew that it was impermissible to kill. Shāfiʿīs recognized that there is ignorance in a more limited sense. Ibid. according to his overarching theory of the law’s ends that work to avert harm construed as immoral deeds. if a Muslim murders someone mistakenly thinking that there is no equality of status..”108 In this case. A central feature of this system is a unique type of legal pluralism. This discussion reveals diversity within schools. Mālikīs hold that there is a sense of compound ignorance of the law—where the law is neither known nor is the legal agent aware that there is a law governing that act—because of the great difficulty of knowing Islamic law’s detailed legal rules. according to one opinion there is still no qiṣāṣ).

302    . Mohammad Hashim Kamali. See. Principles of Islamic Jurisprudence. Recall that. they are the Qurʾān. as seen in Chapter 3. 111 The four principal sources of law for Sunnīs include the Qurʾān. Introduction to Shīʿī Law. They eventually agreed that individually transmitted reports (ḥadīth) provided authoritative indications of prophetic practice. 1992). (Cambridge: Islamic Texts Society.110 Recall. Bernard Weiss. Sunna (normative prophetic and imāmic practice). so long as the ḥadīth met certain criteria of authenticity. For the Shīʿa. note 1.equally valid all sound legal opinions issued by qualified jurists and adopted by one of Islam’s multiple legal schools. The early disputes aside. Traditionism reflected the view that                                                                   110 See Chapter 1. Before detailing how each conceives of interpretive shubha. jurists disagreed sharply over how to interpret the Qurʾān and how to identify Sunna. Thus. jurists (and their political counterparts) settled on the notion that to the jurists belonged the legitimacy and ultimate authority to “say what the law is” based on their interpretation of foundational sources. it is worth reviewing issues of structure and methodology in Islamic law that are key to understanding their conceptions. ed. The Search for God’s Law (Salt Lake City: University of Utah. and analogical reasoning. What if harsh legal consequences attach. See Modarressi. and reason. Sunna (prophetic practice). 1991). 16-116. and accompanying text. consensus. 228-305. that the two primary sources of law are Qurʾān and Sunna (prophetic practice for Sunnīs. 2. even where they conflict. 151-258.111 But despite agreeing on the sources in general terms. as is likely in criminal law? Mālikī and Shāfiʿī confront this problem by regarding certain interpretive differences as reasonable bases for claims of shubha and therefore aversion of the ḥadd-punishment. too. one jurist might regard the same act as legal that another regards as illegal. consensus. the 4th/10th and 5th /11th centuries saw the convergence of Sunnī theorists on “traditionism” to varying degrees. as professional Islamic law developed.. rev. e. prophetic and imāmic practice for Shīʿa).g.

textual ambiguity covers situations where the law is silent as to the legality of particular acts or where there is a conflict of texts. 1. (absence of requisite text (fiqdān-i naṣṣ). Ibid. 113 In general. a text is ambiguous when texts of general import engender uncertainty as to whether and how the law covers a new set of facts.ḥadīth embodied Sunna as a normative source of law—again. Qavāʿid. Legal Pluralism and Interpretive Ambiguity Islamic law notions of clarity and ambiguity outline a wide range of ambiguity to account both for the fluid nature of legal texts and the multiple schools of interpretation that help to define those texts. al-Murtaḍā al-Anṣārī. See also Ibn ʿAbd al-Salām. 303    .112 Interpretive enterprises in the Islamic legal context required deep familiarity with both the substance of the scriptural sources of law as well as methodologies for interpreting them. The Canonization of alBukhārī and Muslim: The Formation and Function of the Sunnī Ḥadīth Canon (Leiden: Brill. conflict of texts (taʿāruḍ-i nuṣūṣ)). see Jonathan Brown. al-Qawāʿid al-kubrā. It is clear from the foregoing discussions that there was a considerable amount of diversity of thought dictating different legal conclusions. For an analysis of the move from ḥadīth as supporting bases for other legal methods to canonical sources for law. This may occur when the law is silent. the scope of an existing and possibly related ruling is insufficiently clear. unclear text (ijmāl-i naṣṣ). though some scholars now question whether Shāfiʿī was in fact responsible for this theory. which was an especially thick                                                                   112 This has been described as Shāfiʿī’s triumph. Ḥanbal (d. 4:54 (ḥukm kullī-yi chīzī mawrid-i tardīd bāshad). or with actual conflicts of texts commanding two contradictory rulings. Shāfiʿī had won. fifty years to a century after the other school founders. 241/855). Rasāʾil (similarly defining shubha as: dawarān al-amr bayn al-wujūb waʾl-taḥrīm). at 2:279-80 (describing textual conflicts as the operative scope of the ḥudūd maxim: al-taʿāruḍ bayn adillat al-taḥrīm waʾl-taḥlīl …). provided particular conditions of authenticity were met. Aḥmad b. Typically. 2007). How would this be dealt with in the area of criminal law where certainty and clear statements were required? Enter the notion of interpretive shubha—which was designed to accommodate if not resolve conflicting interpretations. The committed traditionist orientation is best exemplified for the Sunnīs by the Ḥanbalī school. Dāmād. Arguably.113 A good example concerns sodomy. which did not emerge until its founder.

there was much disagreement about which texts are authoritative and normative bases for law. Rawḍa. should be punished even more harshly). Muqniʿa in YF. there was disagreement about how jurists ought to resolve conflicts between                                                                   114 For general legal treatments of male sodomy in Islam. Ḥanafīs saw ambiguity. Nihāya.117 The existence of ambiguity grew in the realm of ḥadīths. 309. male sodomy which was a graver moral offense. Islamic law has a problem of sources: in the realm of ḥadīth. in YF. Lange. Khaled El-Rouayheb. Punishment. 115 116 See Ghazālī. and even when texts were accepted. but were silent or needed construction to extend to acts of sodomy. 440. Worth noting is that. “Liwāṭ im Fiqh: Männliche Homosexualität. that the word zinā encompassed male-male sexual interactions as well as male-female sex offenses. 304    . not homosexuality or male sodomy). by definition. sodomy could not be a ḥadd crime.g. al-Sharīf al-Murtaḍā.” Journal of Arabic and Islamic Studies 4 (2001-2002). 23:49-50. 139-41. Ṭūsī.bone of contention between the Ḥanafī and Shāfiʿī schools. and rational argumentation (that if zinā was forbidden and had a ḥadd punishment.115 Whereas Shāfiʿīs saw clarity. Accordingly for them. 11:5910-16. 23:31. See. though Ḥanafīs generally found that there was no ḥadd liability for male sodomy.116 In this debate. 2:723-24.114 Ḥanafīs argued that the Qurʾān specified a punishment for zinā (fornication) but was silent on sodomy. Nawawī. Intiṣār. 199-214. See Ibn Nujaym. 1500-1800 (Chicago: University of Chicago Press. Mufīd.. Tajrīd. Justice. Before Homosexuality in the Arab-Islamic World. 5:17. where jurists could rarely point to agreed-upon authoritative texts. consensus. agreedupon Qurʾānic texts that clearly forbade zinā. and their doubt was enough to take sodomy out of the realm of ḥudūd laws. they regarded public male sodomy as immoral and thus punishable at the discretion of the caliph. ʿAzīz. 2005). the jurists were focusing on the scope of identifiable. In addition. Rāfiʿī. Wasīṭ. or alternatively. 117 Shīʿī law did not face the problem of ambiguous texts in its unequivocal prohibition of zinā. one strain followed Abū Ḥanīfa’s two students Abū Yūsuf and Shaybānī and sided with Shāfiʿīs in counting male sodomy as a ḥadd crime. see Qudūrī. e. it cited a body of ḥadīths. see Arno Schmitt. 49-110 (defining the prohibition of liwāṭ as one against anal sex. But Shāfiʿīs disagreed on the basis that the Qurʾān equated zinā to any gravely immoral act and mandated punishment. there was dispute even amongst Ḥanafīs about the status of the crime. For detailed Ḥanafī responses to Shāfiʿī arguments in favor of counting male sodomy as a ḥadd crime. 118-28. al-Baḥr al-rāʾiq.

Heine. Qarāfī understood the first category to be presumed. 466-67. Without a single authoritative corpus of ḥadīth or a single code of law. e. Everyone in a Muslim society should know.. Thus. Qarāfī. 120 119 E.119 For them. the Shāfiʿī recognition is qualified. in Ibn Abī al-ʿIzz. That is. meaning widespread or common. In this context.” EI2. each school of law addressed such questions through elaborate rules of interpretation particular to their own hermeneutical principles that they thought remained most faithful to the constitutional texts. ʿUmdat al-sālik. In the earliest moments of the Muslim community. for example. knowledge. Whereas for Mālikīs. See Makkī. he need only recognize them as valid if those conclusions rest on logic so convincing that they suggest themselves easily to an astute Shāfiʿī jurist’s mind. 7:840. see. Furūq. well-established in another school. 142 (quoting the definition of legal pluralism advanced by thirteenth-century Egyptian jurist Shihāb al-Dīn al-Qarāfī. e. not actual. Wadāʾiʿ [li-manṣūṣ al-sharāʾiʿ]). Marghīnānī. mashhūr. the very fact of juristic disagreement.. al-Qawāʿid al-kubrā.120 Clearly established laws are rules so widespread that they can be presumed to be a matter of common knowledge in a given society or legal regime. Islamic law falls into two categories—clearly established rules and debatable ones. 4:1309. 4:175. Shāfiʿīs flatly prohibit and prosecute consumption of an alcoholic beverage called nabīdh. 2:144 and Fawāʾid albahiyya in Makkī. that the law prohibits sex outside of marriage. see P. Ibn al-Naqīb (d. 769/1367). Ḥāshiya.g. it was possible for new converts to claim that they were unaware of this prohibition. see. if a Shāfiʿī jurist examines the legal sources relied upon by other jurists for divergent opinions. “nabīdh. 2:133-34 (quoting Ibn Surayj. For Shāfiʿīs to recognize rules that go against their school’s mainstream positions requires a firm legal basis that would meet muster according Shāfiʿī interpretive methods. as indicated by its label. See Jackson. and sources cited therein. who lived during the Mamlūk era. 305    .. Ḥāshiya. which gave official state recognition in the judicial-bureaucratic structure to multiple legal schools: “the ability to countenance the plurality of equally authoritative legal interpretations”). is enough to give rise to a ḥadd-averting shubha.g. Islamic Law and the State. as occurred in a case                                                                   118 This is a doctrine adopted by the Shāfiʿī and Mālikī schools. For further discussions of nabīdh. 2:279-80. Hidāya. Ibn ʿAbd al-Salām. most Sunnī jurists saw ambiguity in interpretive differences about the law between the legal schools. art. even though Ḥanafīs famously permit it. Tanbīh.118 This category of “interpretive ambiguity” underscores the extent to which these jurists view Islamic law as a juristic construct that accommodates a generous notion of legal pluralism: any rule that is valid in one Sunnī school is to be recognized as a valid legal rule.g.them.

5:4 and. 12:345. 193-94. 4:1309. “Only astute jurists can                                                                   121 See Ibn Nujaym. Ibn Nujaym took a strict-liability approach. See also Ibn Qudāma. For Ibn al-Humām. But other prominent Ḥanafīs rejected this view. See Ibn Qudāma.121 Some jurists took ʿUmar’s ruling as the basis for a mens rea requirement. Islamic prohibitions against zinā very quickly became sufficiently widespread that they fell into the category of clearly established rules. 12:345. Powers. ʿUmar. “Debatable rules” refers to the detailed technical rules that have been the subject of juristic debate and comprise most of Islamic law.during the time of the second caliph. regardless of publication of the law or the offender’s knowledge. 2006). on the margins. holding that ḥudūd punishments applied whenever ḥudūd laws were violated. The implication is that the man’s lack of awareness was plausible. with Ibn ʿĀbidīn specifying that to impose a ḥadd would contravene the requirements of the ḥudūd maxim. Paul R. Qarāfī. imposed a knowledge requirement for zinā-liability based on ʿUmar’s judgment. including Ibn Māzah. 306  123 124   . and Ibn ʿĀbidīn.123 Thus. courts generally did not entertain claims of ambiguity. 5:4 (ʿadam ishtihār al-aḥkām). Cf. the prohibition against extra-marital sex had been clearly established. Ibn ʿĀbidīn’s Sharḥ. claims of ignorance were never appropriate in cases of sex offenses because all religions and communities had outlawed it.124 And in this area of clearly established rules. a thirteenth century jurist ruled that a couple claiming confusion about the legality of sex before marriage when they planned to get married does not constitute the type of ambiguity that would avert a ḥadd. Intent in Islamic Law (Leiden: Brill. The caliph ruled that a Yemeni man who committed a sex crime but claimed not to know that it was illegal was eligible for the ḥadd punishment if he knew that the act was prohibited. Furūq.122 But more generally. Mughnī. al-Baḥr al-rāʾiq. For the various positions. ʿAynī. 122 Prominent Ḥanafī jurists. see Ibn Nujaym. The implication is that the ability to claim shubha by way of ignorance about zinā prohibitions was limited to the first generations. jurists determined that Islamic law’s clear prohibitions against zinā very quickly became sufficiently widespread that they fell into the category of clearly established rules. Mughnī. al-Baḥr al-rāʾiq. which coincided with their understandings of the ḥudūd maxim. as Yemen was on the margins of the community at a time when Islamic law was not widespread.

Christianity and Modernism in Islamic Society. 1998). Netherlands: Katholieke Universiteit Leuven. then “ignorance is an excuse (for the layperson). who provides a main source for Sunnī law. The Meccan school of Ibn ʿAbbās (d. 459-462. Qarāfī. “ʿAbd Allāh Ibn ʿAbbās and Shīʿite Law. but there is evidence that temporary marriages continued well into the first century. (fa-lā yaʿlamuh illā ʾl-fuqahāʾ al-fuḥūl wa-taḥqīquh ʿasīr ʿalā akthar al-nās fa-kāna al-labs fīh ʿudhran).126 In criminal law. See Wilferd Madelung. Furūq. 1996 (Leuven. a central way of accounting for it was through elaboration of the ḥudūd maxim and its doctrine of shubha. 90-91. and even then.discern these rules. There is evidence that the Shīʿa often adopted laws of Ibn ʿAbbās that diverged from regulations issued by ʿUmar and applied by his son ʿAbd Allāh.” which Sunnī schools later deemed illegal. The sources suggest that Islamic law initially allowed “temporary marriages. 68/687) sanctioned it. Here. Economy of Certainty. with the argument that a caliph cannot prohibit practices permitted by the Prophet or one of the Imāms. 4:1409 (emphasis mine). This adoption was not explicit. especially considering the ambiguous regard in which Shīʿī biographers held Ibn ʿAbbās. if even jurists could reasonably disagree about the substance of the law.” one jurist explains. This rule continues as a valid form of marriage in Shīʿī law today. 15-16. as did the proto-Shīʿa in Medina and Kūfa. In other words.” Proceedings of the Eighteenth Congress of the Union Européenne des Arabisants et Islamisants: Law. but disagree as to whether the practice was subsequently outlawed. Most jurists agree that the Prophet permitted this form of marriage during his lifetime. they imposed a high burden of clarity before allowing criminal liability.”127 An example is the interpretive difference concerning valid forms of marriage. These are marriage contracts wherein a couple specifies a date upon which the union will dissolve automatically without divorce proceedings. they often disagree.128 This evidence indicates that                                                                   125 Ibid. Most Sunnī jurists concluded it was. Madelung’s suggestion that the Shīʿa may have adopted readings from a pre-ʿUthmānic codex of Ibn ʿAbbās to permit temporary marriage is not borne 307    . 126 127 128 This insight is the major contribution of Zysow. textual ambiguity to jurists means non-liability for the average person.125 Muslim jurists have always acknowledged the probabilistic nature of their interpretive endeavor and tried to account for it in various ways. 23-25.

early Shīʿī jurists may have read Ibn ʿAbbās’s additions to be commentary rather than as variants. Nevertheless. ibid. This is reflected in the editor’s note in Qarāfī’s Furūq. most Sunnī jurists came to a consensus by the mid2nd/8th century that temporary marriages were unlawful.129 The disputed status of this form of marriage can have stiff consequences in criminal law because sexual relations in an invalid marriage open parties up to criminal liability for zinā—where penalties range from flogging to death. and that this was the opinion of all jurists from the generations of the Companions. but also that Māwardī. 4:1307 (citing Ibn Rushd al-Ḥafīd. as Madelung posits. their Successors. said that temporary marriage is indisputably ḥarām. as was common. Jurists announced a general rule that allowed for many laws deemed valid in one school to be construed as creating the type of shubha that absolves from criminal liability someone accused of violating that law deemed invalid in another school. ʿUmar is said to have prohibited the practice after the Prophet’s death. 308    . which refer only to the ʿUthmānic reading so far as I can tell. The Shīʿī treatment of mutʿa may reflect a tendency to omit Ibn ʿAbbās as the true source. and indeed. 23-24. Bidāyat al-mujtahid). and succeeding jurists. To do otherwise would be to impose criminal liability where the perpetrator did not have clear notice that his actions were proscribed. Ḥāwī. Alternatively.any prohibition must have occurred through some means beyond the formal constitutional sources. saying that the reports that the Prophet prohibited temporary marriage (mutʿa) were transmitted by many routes and thus certain (mutawātir).. 129 Contemporary scholars often disregard the early opinions regarding interpretive shubha concerning temporary marriage. the subsequent outlawing of which by non-Imāms was easily rejected in their theory of law and legal authority.                                                                                                                                                                                                 out by Shīʿī texts. in an area where even the jurists could not agree on the clarity of the law. Jurists invoked the ḥudūd maxim in such cases on the notion that interpretive ambiguity about the legal status of temporary marriages did not give fair notice to non-jurists who entered into such contracts. 11:449. categorically prohibiting it without recognizing the disputed nature of the practice in the early community. or it may be that they found no trouble interpreting the Qurʾān to support a continuing practice of the Prophet.

The first punishment that the Qurʾān set forth for zinā was life imprisonment for the thayyib (married person) and adhā. as shown by the Ḥanafī back-and-forth on the matter.2. In addition. Qurʾān. as interpreted by Ibn Qudāma.” “derived.” or “not-clearlyestablished” would also be accurate descriptions. a prophetic report related on the authority of early Kufan jurist Ibn Masʿūd states that the biggest sin after polytheism and infanticide is zinā. after the early period. There is considerable dispute about the import of these verses and whether and how they were abrogated. the Qurʾān advises Muslims not to even approach (acts that might lead to) zinā. as when someone has recently converted or for Muslims born and raised elsewhere. Mughnī. but the law offers some reasonable bases for ignorance or mistake-of-law. Jurists take these statements to be clear textual prohibitions against zinā. But this too was a matter of debate. 131 132 See above. 17:32: wa-lā taqrabū ʾl-zinā innahu kāna fāḥishatan wa-sāʾa sabīlan). “Complex. Interpretive shubha involves ambiguities from the early or formative period recognized in the law during the professional period. For example. this dispute did not translate into shubha. taking life unjustly. Qurʾān. for the bikr (non-married person or virgin). and zinā—all of which are sins that will incur exaggerated punishments in the hereafter. note 120 and accompanying text. In another.” because he means to suggest that they are rules from unclear texts that bear different interpretations. which is verbal admonishment or discretionary physical punishments. Furūq. Ḥanafī jurist Ibn Māzah [al-Bukhārī] explicitly imposed a knowledge requirement for zinā-liability based on the early judgment of ʿUmar Ibn al-Khaṭṭāb that a Yemeni man who committed zinā was only to receive the ḥadd punishment if he knew that the act was prohibited. which has given rise to an extensive literature about abrogation. Ibn Qudāma. In one place. Those laws are more akin to the ones at issue in Qarāfī’s second category of law here. calling zinā a “grave offense” and an “evil way” (Qurʾān.132 Such claims generally are considered implausible because everyone knows (or should know) that sex requires a validating relationship first and otherwise is considered zinā for which they will be ḥadd-liable.131 As mentioned. NB: Distinguish between this discussion and that of the first Mālikī type of shubha. resulting from and in reasonable juristic debates on meaning. Qarāfī explains his Mālikī conception of law as falling into two categories—the clearly established rules and the debatable ones. clearly established laws are defined as rules so widespread that they can be presumed to be a matter of common knowledge in a given society or legal regime. 133 There are some exceptions. for which there is no easy translation. 7:307. 25:68-69. Mālikī Interpretive Shubha and The Fiction of Knowledge of the Law Contemplating the ḥudūd maxim.. Notably. a claim of ignorance in a Muslim society that zinā is illegal would not be entertained as giving rise to an instance of shubha.130 as detailed above.g. 4:15-16. 4:1309. I settled on “debatable. refrain from polytheism. among other things.133 This and other such violations of clearly established ḥudūd                                                                   130 Qarāfī. The prohibition stems from the Qurʾān and prophetic reports. See. Mughnī. e. it states that God’s (true) servants who will be rewarded are those who. which advise that zinā is a grave moral offense and establish sanctions for its commission where the crime is proved by four male witnesses or by confession. Other prominent Ḥanafī jurists like 309    . where only the general contours of the law are well-known. 7:307.

879/1474-5) resolved the conundrum in this way: as an early opinion. Sharḥ al-Baḥr al-Rāʾiq on the margins of Ibn Nujaym. The upshot in that realm. For Ibn al-Humām. Ibn Nujaym took a strict-liability approach. Baḥr. Ibn ʿĀbidīn’s Sharḥ al-Baḥr al-Rāʾiq. ignorance is never an excuse. The second category encompasses the “debatable rules” mentioned above. and agreement amongst jurists was rare. and on the margins. 5:4. Ibn Amīr al-Ḥajj (d. The implication is that the ability to claim shubha by way of ignorance about zinā prohibitions was limited to the first generations. and Qarāfī maintains that most laypeople and even many jurists cannot derive those rules. 134 See above. Baḥr. Islamic prohibitions against zinā very quickly became sufficiently widespread that they fell into the category of clearly established rules. 12:345. Such rules make up most of Islamic law. Their acknowledgment that rules were only probably correct and that divergent opinions were not necessarily incorrect had consequences for questions of criminal liability. given the serious nature of the moral accusation and the harsh consequences involved in ḥudūd laws. See also Ibn Qudāma. It is one thing to find shubha when laypeople try to interpret the law and get it wrong. ʿUmar’s judgment in the Yemeni case applied because of the lack of widespread knowledge of new Islamic laws just after Islam’s advent (ʿadam ishtihār al-aḥkām). The most far-ranging and penetrating safeguard was this doctrine of shubha.laws then make offenders eligible for the associated punishments. For this set of laws. claims of ignorance were never appropriate in these cases because all religions and (thus) all communities had outlawed it. 5:4. most Sunnī jurists recognized that even the most heroic of efforts to discover the law did not yield certain conclusions. See Ibn Nujaym. But other prominent Ḥanafīs rejected this view. note 134 (quoting Qarāfī.                                                                                                                                                                                                 ʿAynī and Ibn ʿĀbidīn followed this opinion. regardless of publication of the law or the offender’s knowledge. Ibn ʿĀbidīn. Mughnī. Baḥr. 5:4).134 As noted above. 4:1309 (fa-lā yaʿlamuh illā ʾl-fuqahāʾ al-fuḥūl wa-taḥqīquh ʿasīr ʿalā akthar al-nās fa-kāna ʾl-labs fīh ʿudhran)). Furūq. which here manifests as a clear-statement rule. 310    . 5:4. See Ibn Nujaym. was the development of substantive and procedural safeguards for determinations of guilt and sentencing. holding that ḥudūd punishments applied whenever ḥudūd laws were violated. the latter adding that to impose a ḥadd would also contravene the ḥudūd maxim.

as noted in mistake-of-law. Mālikīs broadly recognize interpretive differences on issues relating to most criminal laws (murāʿāt al-khilāf). Does it encompass male sodomy. Yet even for Sunnīs who saw ʿUmar’s decisions as normative. Even zinā becomes a second-category offense when interpretive differences obscure the scope of seemingly clear-cut zinā prohibitions. Furūq. Mughnī. Should it not exist all the more so. and implicitly to defamation and wine-consumption. absolving any temporarily-married person from liability under zinā laws that otherwise do not deem temporary marriage as a legal                                                                   135 See Qarāfī. and records of its continuing practice and permissibility amongst respected jurists from the early period together creates a genuine juristic disagreement as to the permissibility of the practice. 12:340. 311    . the same applies to theft. other schools permit forms of marriage that Mālikī law does not. and non-Muslims?136 Moreover. This is interpretive shubha for Mālikīs. Note that the absence of shubha is built into the definition itself. the insane. Temporary marriage constituted one form attested in early Islamic legal history. Zinā is prohibited sexual relations between a man and a “woman [who have] no validating legal relationship or semblance of such a relationship (shubhat al-ʿaqd or shubhat al-milk). 136 Jurists agree only on the most basic definition. bestiality. ʿUmar was said to have prohibited the practice after the Prophet’s death. 4:1309.” Ibn Qudāma. Qarāfī argued. judgments prohibiting it. when even jurists found difficulty in interpreting the law?135 Following this logic. The various legal schools differ over the precise definition and elements of zinā. ranging from debates about the elements of the crime and jurisdiction to offender characteristics and culpability. and necrophilia? Is there extraterritorial liability? Do zinā laws apply to minors. the conflict between texts initially permitting temporary marriage.

4:1307 (calling this type of difference shubha fī ʾl-ṭarīq generally and ikhtilāf al-ʿulamāʾ fī ibāḥat al-mawṭūʾa specifically). Ashbāh. under Mālikī law. Makkī. Shāfiʿī Interpretive Shubha: Reasonable Differences Only in the Dominant Legal Regime Shāfiʿīs also recognize the principles of interpretive shubha but place tight restrictions on its operative scope. or without a guardian for the wife (as permitted by the Kufan school of Abū Ḥanīfa).138 They recognize the forms of marriage deemed permissible in the earliest period of law before the emergence and crystallization of law schools. jurists of other schools applied the ḥudūd maxim whenever these types of marriages arose. 4:1307. comparing it to eating carrion to survive.137 The same applies to other areas of interpretive shubha. and Ḥanafīs regarded marriage without a guardian (walī) as valid (in that a guardian is a condition rather than an essential element of a valid marriage contract). this type of difference generally translates into no ḥadd liability. An early opinion of the Ẓāhirī school.” The Shāfiʿī recognition of this rule as constitutive of ḥadd-averting shubha is not from recognition of Shīʿī law. which continues to validate the practice. 237 defines this type (shubha fī ʾl-ṭarīq or shubhat al-khilāf) as rules that “are licit according to some jurists but illicit according to others (yakūn ḥalālan ʿinda qawm ḥarāman ʿinda ākharīn). Ḥāshiya. the practice was forbidden in the year of the Battle of Khaybar. but only as a dispensation by necessity. Ḥāshiya. E. 3. 2:144. then said to have been prohibited forever in the year of the Prophet’s Farewell Pilgrimage. 312    140 139 . One Shāfiʿī jurist. Qarāfī. Yet contrary even to this narrative. Makkī. Contrary to that narrative. 2:144. deemed as valid marriages with neither a guardian nor witnesses. his permissive opinion created another basis for shubha for other jurists. saying that there was ḥadd liability for those who contracted temporary marriages regardless of whether they knew it to be forbidden. they saw interpretive shubha in zinā accusations against people married temporarily (as permitted in the Meccan school). just as—under Shāfiʿī law—Ḥanafīs were ḥadd-liable for drinking nabīdh regardless of whether they knew it to be forbidden. That is.. For some scholars. 138 Suyūṭī. so no ḥadd liability applied to anyone who practiced it. followed in the Meccan (and Shīʿī) school permitted it—indicating his view that the Prophet had not in fact forbidden the practice permanently.validating relationship in the Mālikī or any other Sunnī school of law. Makkī. Mālikīs permitted marriages without witnesses.140 Though Shāfiʿīs reject these sorts of marriage. Hence. the ḥadīth scholar Bayhaqī reported that Ibn ʿAbbās had reversed himself on that opinion. that                                                                   137 Qarāfī. These are common examples typically discussed in the legal maxims and fiqh literature as giving rise to accepted instances of interpretive shubha. again. advanced by its founder Dāwūd b. According to Shāfiʿīs. Ibn ʿAbbās. even when they deemed them invalid in their own school. Khalaf. explains that temporary marriage was an ordinarily prohibited act that was made licit right at Islam’s inception.g. then permitted in the year of the Meccan Conquest. just before he died. Furūq.139 without witnesses (as permitted by the Medinan school of Mālik). Furūq.

Ḥāshiya. by definition.141 But Shāfiʿī willingness to recognize other schools’ opinions beyond those established during this early period was limited. even if well-established in another school. Fatāwā). (citing Qaffāl. and consequently. mere juristic disagreement. because these acts are permitted in other schools on sound (or at least plausible) legal-interpretive bases. Shāfiʿī jurist Makkī cautions that it is far from easy to evaluate the strength of a divergent opinion (that. 237. More common are examples of disputed forms of marriage of marriage without a guardian or without witnesses. 313    . Shāfiʿīs would apply the principle of interpretive shubha in these cases to avert the ḥadd for zinā.other early schools permitted them meant that early scholars—whose views created precedent—must have allowed them. An alternative opinion might reveal itself with the slightest reflection or it could require considerable thought. for the validity of his decision is disputed amongst jurists. Ibid. they will not impose ḥudūd punishments for apostasy for a person who has neither water nor sand available to him to make dry ablution (fāqid al-ṭahūrayn) as a necessary prerequisite for prayer who abandons the five prescribed daily prayers intentionally. 141 Suyūṭī. if a Shāfiʿī jurist examines the legal sources relied upon by other jurists for divergent opinions. Tuḥfat al-muḥtāj). 2:144) (citing Ibn Ḥajar al-Haytamī. took the opposite view because of the overwhelming disagreement with Dāwūd and his methods. was not the mainstream Shāfiʿī jurist’s immediate conclusion in the first instance). such as Ibn Ḥajar al-Haytamī in his Tuḥfa. Likewise. recognition is due only to conclusions that rest on logic so strong that they suggest themselves easily to an astute jurist’s mind. Nevertheless. Ashbāh. recognition of rules that go against the mainstream Shāfiʿī positions requires a firm legal basis that would meet muster according to Shāfiʿī interpretive methods. which are typically discussed as accepted instances of interpretive shubha. they will not impose the ḥadd sanction against someone who touches a person of the opposite sex then prays purposefully (which Shāfiʿīs maintain nullifies the ablution. That is. only well thought-out                                                                                                                                                                                                 but the Shāfiʿī jurist Tāj al-Dīn al-Subkī noted that other scholars. For them. likewise. (see Makkī. Accordingly. is not enough to give rise to a ḥadd-averting shubha. the validity of the prayer) or who makes ablution without the intention to do so (as Shāfiʿīs require). Rather.

that this position is well                                                                  142 Suyūṭī. recognized only those divergent conclusions adopted out of dire necessity. Makkī.g.. 142 Going even further. That is. ʿUmda. To be sure. Ḥāshiya.differences on the basis of strong legal arguments create the kind of ḥadd-averting shubha at issue here. Abū ʾl-Qāsim al-Khiraqī. Mālikīs and other Sunnīs prohibit the drink based on the implications of prophetic saying and on analogy—both less than absolutely clear and certain bases for the prohibition. Ḥāshiya. 2:133-34 (citing Fawāʾid al-bahiyya. the beer-like beverage that Ḥanafīs infamously permitted. e.. which the Qurʾān clearly prohibits. Wadāʾiʿ). e. One Shāfiʿī judge. Ibn Shurayḥ. If a jurist comes to a similar unavoidable judgment of law where the actual legality of an act is unknown and the circumstances dire. 2:133-34 (qawiyyan dalīluh). One would expect a school’s recognition of interpretive shubha to provide cause for avoiding ḥadd punishments against Ḥanafī nabīdh-drinkers caught by non-Ḥanafī authorities. the Mālikīs do just that. Consider the drinking of nabīdh. Shāfiʿīs will recognize interpretive shubha. Risāla (Rabat: Wizārat al- 314    . ibid. 1964). 238 (sharṭ al-shubha an takūn qawiyyan). see. Mukhtaṣar (Damascus: al-Maktab alIslāmī liʾl-Ṭibāʿa waʾl-Nashr.” For the rules prohibiting it in other schools. Ashbāh.143 On this extremely narrow interpretation. Indeed. Ibn Abī Zayd al-Qayrawānī. they point to the ḥadīth stating that any intoxicating substance in large quantity is prohibited in small quantity and analogize the intoxicating qualities of nabīdh to those of wine.144 For Mālikīs. not many cases of interpretive shubha are ḥadd-averting. based on the ḥadīth stating that a drink “that intoxicates in large quantity is prohibited in small quantity: mā askara kathīruh fa-qalīluh ḥarām.. 466-67 (defining the prohibition against drinking to cover any substance that would intoxicate if consumed in large quantity. 196 (Ḥanbalī). 144 See. Ibn al-Naqīb.g. 143 Makkī. He illustrates the point with the most extreme example of life-and-death straits: a person may resort to eating carrion—ordinarily prohibited—in order to survive. quoting Ibn Surayj. 2:241-42 (commenting on the strength of the evidence (madrak) required). some jurists apply even more restrictive criteria before making findings of interpretive shubha.

and the surviving family members of the non-Muslim victim retaliate by killing the Muslim perpetrator. in YF. 2:731. 145 146 See above. 160 (Mālikī). Ṭūsī. also based on a ḥadīth and its harmful health effects.145 Uniquely. Shāfiʿīs reject this case as a legitimate difference of interpretation and rule that the ḥadd punishment applies to Ḥanafīs who drink nabīdh even if they do so believing that it is lawful in their own legal school. in YF. in YF. if a non-Muslim took revenge against a Muslim who had killed one of his family members. Muqniʿa. note 106. the laws of retaliation (qiṣāṣ) would not apply because retaliation laws required equality of status. Qawāʿid.146 Shāfiʿīs rejected this Ḥanafī such that ḥudūd avoidance would not apply regardless of the supposed basis for the rule. See Mufīd. 315    . Ibn Bābawayh. 598/1201-2). which Muslim jurists believed were lacking in such cases. Shāfiʿīs restrict interpretive shubha to actual ambiguities of legal texts based on their                                                                                                                                                                                                 Awqāf waʾl-Shuʾūn al-Islāmiyya. and they hold that Ḥanafīs who drink nabīdh are ḥadd-eligible. Shīʿī law prohibits it too. after acknowledging early precedential rules from other schools of law. the clarity of the law in the foundational texts leave Ḥanafīs with no reasonable basis for legalizing nabīdh. Ordinarily— as noted above. Nihāya.established in the Ḥanafī school suffices to make it an instance of interpretive shubha. Sarāʾir. See. Shāfiʿīs also part ways with Ḥanafīs on certain issues of homicide. 23:40. even if he retaliated with the Ḥanafī rule in mind. Ibn Idrīs al-Ḥillī (d. Ḥanafīs permitted the surviving family members of non-Muslim murder victims to pursue retaliation against Muslim perpetrators without sanction (for which they were ridiculed). Muqniʿa. and accompanying text. Mufīd. that is. Accordingly. Shāfiʿī held that the non-Muslim became eligible for the penalty of death. 23:41. if a Muslim kills a non-Muslim. 23:418. But for Shāfiʿīs. based on the ḥadīth rather than qiyās. note 37 and accompanying text (discussing the case of Zufar that reveals that. They further prohibit a non-intoxicating drink. In sum. as they reject extending rules on the basis of analogy. fuqqāʿ.g. if a Muslim were to kill a non-Muslim. al-ʿAllāma al-Ḥillī. See Chapter 1. Hidāya. 1415/1995).. there can be no prosecution against the retaliation because the survivors had some legal basis in Ḥanafī law to justify their actions). under Ḥanafī law. 20 (not citing the ḥadīth explicitly). 3:474. e.

Shubha as Interpretive Difference Shāfiʿī parallels to the Ḥanafī rebuff of interpretive shubha are perhaps telling. where was a conflict between precedents conferring rights to sexual enjoyment of slavewomen (conceived as property) with texts prohibiting sexual relations without full ownership. without any indication of preference (tarajjuḥ). As the dominant legal system for centuries under ʿAbbāsid rule in its several manifestations. mistake-of-law in the mind of the layperson.147 By interpreting interpretive shubha so narrowly then. Shāfiʿīs further developed their jurisprudence of legal maxims under the Mamlūks. it helps jurists of this school interpret the law more determinately and with more precision. Ḥanafism had an interest in expounding the law as clearly as possible according to an internal jurisprudential logic that had no need for officially recognizing minority schools. Minority status may explain their initial recognition of interpretive shubha in principle: it was a petition for self-recognition and an argument for their own relevance. By way of example. Shāfiʿīs recognize only the first two types of shubha broadly: mistakeof-law and mistake-of-fact. but did so now as a part of a structurally diverse system in which                                                                   147 Ibn ʿAbd al-Salām describes interpretive shubha as referring to instances of conflicts in legal texts. Ḥudūd liability is removed only when an offender mistakes the law defined by Shāfiʿī jurisprudence plus a few exceptional cases folded into the mix by the authority of early precedents. as no legal ambiguity arises except in the mind of the layperson. rather than the type of shubha that arises in the mind of the jurist based on some textual legal basis. 316    . he points again to the case of a jointly owned slavewoman. 2:279-80 (al-taʿāruḍ bayn adillat al-taḥrīm waʾl-taḥlīl …). C. Qawāʿid. in essence. as where one text indicates that a certain act is permissible and another that it is impermissible. jurists are agreed that the law prohibits sexual relations with only partial slave-ownership. This is perhaps not the best example.own interpretive methodology. The limitation to Shāfiʿī rules helps restrict potentially unwieldy claims of shubha by reference to interpretations of other schools. Shāfiʿism developed as a minority school—that is. one without official state patronage. His example places his conception squarely in the realm of the second type of shubha. Ibn ʿAbd al-Salām.

In that position. Shāfiʿī’s were dominant in early Mamlūk Egypt. “The Primacy of Domestic Politics: Ibn Bint al-Aʿazz and the Establishment of the Four Chief Judgeships in Mamlūk Egypt. that the ḥudūd maxim could not apply.H.representatives of each school were officially recognized by the political authorities with the establishment of four chief judgeships—one chief judgeship for each school. Their earlier. Notably.” Studia Islamica 60 (1984): 167-76. Jurists of some schools argued in favor of strict liability for certain crimes. they could severely restrict it. see Sherman Jackson. For a more in-depth treatment commenting on the politics surrounding the institution.                                                                   148 For classic—though brief—expositions treating the four chief judgeships in the secondary literature. In such cases. Escovitz. more accommodating theories of legal maxims and of doubt did not allow them to eradicate interpretive shubha. “Legal Diversity in the Age of Taqlīd: The Four Chief qāḍīs under the Mamlūks. 663/1265. “The Establishment of Four Chief Judgeships in the Mamlūk Empire. Cf. see J. they advocated punishment regardless of mistake or lack of notice.S.” Islamic Law and Society 10. This may explain why Shāfiʿīs of the period revealed a certain hesitance to defer to positions of other schools through the category of interpretive shubha. Baybars. IV. Nielsen. 317    . they argued. J. the Shāfiʿī stance was quite different from the more accommodating one of the Mālikīs—who never dominated in Mamlūk Egypt and who always faced a certain amount of legal (and theological) diversity farther West in Andalusia and North Africa. was obliged to create the four chief judgeships after the Shāfiʿī judge he installed to garner legitimacy threatened to alienate the other legal schools with his overwhelming assertion of Shāfiʿism that led to his own school’s dominance in early Mamlūk Egypt). Fault Lines: Strict Liability & Moral Values Ambiguity did not always produce the benefit of ḥudūd aversion.” Journal of the American Oriental Society 115 (1995): 52-65 (arguing that the new Mamlūk sulṭān. they would have had an early Ḥanafī-like interest in clarifying the law and would similarly have been under no obligation to defer to the other schools.” Journal of the American Oriental Society 102 (1982): 529-31. Yosef Rapoport. 2 (2003): 210-28 (questioning Jackson’s analysis). “Sultan al-Ẓāhir Baybars and the Appointment of Four Chief Qāḍīs. but with a new orientation.148 According to Sherman Jackson. where the values at stake were so fundamental.

See Ibn Qudāma.150 During the reign of the second caliph. Case no. He determined the case to be one of rape.. or coercion. Consensus Cases of Strict Liability Jurists agreed that the ḥudūd maxim would not apply to proved instances of rape. Ibn Qudāma. 12:347. 14. recall that ʿUmar averted the ḥadd sanction from a woman accused of zinā who claimed to have been sleeping and awoke to find a man atop her. forgetfulness. Cf. 318    . Anṣārī. Azam. 154 (same). The prohibition against it was a well-established rule that all legal agents were presumed aware of and charged with respecting. No amount of claimed ignorance of the law could avert ḥudūd liability from the perpetrator because of the gravity and the immorality of the crime and its violation of the private interests of the victim. Bihbahānī. ignorance. Sexual Violence in Mālikī Legal Ideology (discussing rape in early Islamic and medieval Mālikī law). Rasāʾil. Jurists rejected any room for applying the ḥudūd maxim in these cases. forgetfulness. as the lack of voluntariness was conceived as a ḥadd-averting shubha akin to the lack of mens rea. 354 (citing the ḥadīth: “My community is not liable in nine situations … [among them]. They held those who failed to recognize and adhere to these norms strictly liable. 347-48 (citing the ḥadīth: “My community is not liable for [consequences arising from] mistake. which lifted criminal culpability from the woman and imposed it strictly on the man. 3:347.A. Mughnī. Rasāʾil. 151 150 See Chapter 2.                                                                   149 Jurists uniformly avoided imposing the ḥadd sanction on rape victims. mistake.151 In this way. on the basis of the ḥadīth in which the Prophet reportedly said that members of his community were not liable for matters arising from coercion. see also ibid. Appendix. all jurists drew a red line around rape of a woman as a crime of strict liability. coercion.”). Mughnī. and incapacity).149 The flip was also true: the ḥudūd maxim always applied to the rape victim.

Radd al-muḥtār. see above. Ibn Qudāma.152 The founder of the Ḥanafī school. Against Contracting Ambiguity Most jurists also imposed a rule of strict liability on couples who are forbidden to marry (like siblings) but do so anyway. Most jurists. Tajrīd. ḥaqq al-milk or ḥaqīqat al-nikāḥ versus shubhat al-nikāḥ. they create at least the semblance of a contract. Abū Ḥanīfa extended this norm to marriage law in his position that the semblance of a marriage contract should provide protection as well. 5:16). exculpating parties from accusations of zinā. Moral Values as Limits on Ḥudūd Avoidance The effect of the broad rule of Ḥanafī contractual shubha was to counsel ḥudūd avoidance in all contracts cases. Examples include Qudūrī (implicitly). He held that legal permissions ordinarily flowing from a valid contract create a ḥadd-averting shubha when a contract is materially defective. and others). Abū Ḥanīfa saw them as voidable. Ibn Nujaym. note 146. He applied this rule even where contracting parties enter into a contract knowing of the material defect. Isḥāq [b. rejected his arguments. For further discussion. Badāʾiʿ al-ṣanāʾiʿ. al-Baḥr al-rāʾiq. note 84 and accompanying text. Fatāwā. Rāhawayh]. 1:128.                                                                   152 Many dispense with a mens rea requirement here. in this case. 12:341 (citing late-second. see Chapter 3. that is. 5:108-16. and contracts for the sale of wine (see Ibn Nujaym. and accompanying text. For these mid-third-century jurists Abū Yūsuf. for him. 11:5901-07 and Kāsānī.B. the Islamic law of contract provides some protection for defective commercial transactions pursued on the mistaken belief that they were done under color of a contract.154 This effort to privilege the law of contract over all other values ultimately failed. 153 Ordinarily. Only a minority of later Ḥanafīs followed Abū Ḥanīfa’s views of shubhat al-ʿaqd. however knowingly defective. and shubhat al-ishtibāh fī mawḍiʿ al-ishtibāh fī ʾl-milk 319    155 154 . the sensitive nature of such relationships and the moral derogation of crossing such lines warrant a strict-liability approach. 3: 480-489). Further examples where Abū Ḥanīfa bars punishment even though Islamic law clearly prohibits acts include the following: sexual relations with a slavewoman held as security (see al-Fatāwā al-Tātārkhāniyya.155 For them. 12: 61-84. Mughnī. Qāḍī Khān. where there is a semblance of a valid contract. attempted to counter that rule by proposing another type of ambiguity: contractual ambiguity. 9:4150 (explicitly defining the types of shubha according to categories of contract as: ḥaqīqat al-milk versus shubhat al-milk. often implicitly. Ashbāh. Whereas other jurists saw such marriage contracts as void.153 C. Muḥammad [alShaybānī]. Abū Ḥanīfa. indicating the moral value they place on this rule. Ibn ʿĀbidīn. even subsequent Ḥanafīs of Abū Ḥanīfa’s own school. For further discussion.

Conclusion The concepts discussed here were laid out succinctly in the legal maxims literature that blossomed most pronouncedly from the 7th/13th through 10th/16th centuries. and where principles of ḥudūd                                                                                                                                                                                                 waʾl-nikāḥ). Jurists found the value Abū Ḥanīfa placed on private property insufficiently compelling to trump competing family values. Likewise. V. And for most jurists. certain substantive moral values disallowed ḥudūd avoidance—setting clear limits on the doctrine and practice. beginning with Abū Ḥanīfa’s two most prominent students. the ḥudūd maxim often begins the section on criminal law. this signaled a move not only from traditions to law. even within legal schools. 320    . Importantly. Jurists differed significantly.adjudication on the mere basis of the sanctity of private agreements had to fit within rather than override Islamic law’s overarching fundamental values. The rationales justifying ḥudūd avoidance and counseling against it in these cases clashed directly. what justified it. 1:128 (noting their disagreement with Abū Ḥanīfa’s rule of ḥadd aversion by shubhat al-ʿaqd where there is knowledge of the illegality of marrying and no mistake as to identity). the content of this new exposition of law was neither uniform nor absolute. In this professional period. objected. as in law manuals. about what constituted shubha. they found moral imperatives against sexual violence and toward preserving an elaborate structure of Islamic sexual ethics to outweigh any interest in avoiding ḥudūd punishments. but from common-law style case-by-case reasoning to principle-based expositions of law. Subsequent Ḥanafīs. Abū Yūsuf and Shaybānī. The early precedential ḥadīth reports outlining instances of ḥudūd avoidance as well as subsequent legal developments in each school were absorbed into the legal maxims collections as model cases meant to illustrate the maxim and provide normative guidance for future cases. Ashbāh. See Ibn Nujaym. There.

These differences and their differing conclusions illustrated the realities of ongoing debates between jurists as well as the competing moral values that they were attempting to balance. and the inclusion of the maxim but with limitations on it revealed the moral commitments of proponents of this maxim. The detailed definitions of the ḥudūd maxim presented through model cases revealed juristic diversity and dissent. Islamic legal maxims and the literature from the end of this period collecting them reflect both settled statements of Islamic law and key moral values within it. The next two chapters assess the commitments of other jurists who approached this and other maxims with caution and sometimes outright rejection. In a similar vein.avoidance did not apply. 321    .

5:416. are said to have opposed the ḥudūd maxim and its doctrine of ḥudūd avoidance.CHAPTER 5 The Ḥudūd Maxim Questioned: Opponents and Reluctant Adherents I. Ḥanbalī and Ẓāhirī jurists. procedural. the question becomes: how did they deal with the competing attitudes? How did they relate to or define and limit the scope of doubt jurisprudence? And what became of legal maxims like the ḥudūd maxim in their approaches to law? This chapter examines the approaches of Ḥanbalī and Ẓāhirī jurists to criminal law and the inevitable presence of doubt therein. whereas Chapters 3 and 4 showed how the majority of jurists mediated the competition. Their strongly textualist counterparts..B. 2 See Chapter 1. seemingly rejecting it as based on an inauthentic ḥadīth. covering substantive.1 And Dāwūd al-Ẓāhirī and his followers rejected it for similar reasons. Section V.2 If strong textualism required ḥadīth-based arguments and they rejected the ḥudūd maxim on those grounds. Ibn Ḥanbal did not view the ḥudūd maxim favorably. see Chapter 1. 322    . Musnad. For a discussion. I will demonstrate that traditionisttextualism had gradations that manifested in a wide diversity of opinions with respect to the ḥudūd maxim. and discussion below. Ḥanafī. Their alleged opposition to the ḥudūd maxim and ḥudūd avoidance                                                                   1 See Ibn Ḥanbal. Mālikī. and Shāfiʿī (and as covered in the final chapter.B. Introduction Chapters 1 and 2 showed competing attitudes toward ḥudūd imposition and ḥudūd avoidance amongst early jurists. Section V. Shīʿī) jurists developed the nascent doubt jurisprudence reflected in early traditions to form a robust theory of shubha. and interpretive ground.

that would have been preferred. See the collection of Ibn al-Qayyim’s fiqh writings in Jāmiʿ alfiqh. Some accepted the maxim outright. this is a “permissible stratagem: ḥīla jāʾiza. These were cleverly called instances of shubha by jurists who accepted the ḥudūd maxim. And where others placed limits on any principle of ḥudūd avoidance. For 323    . when the Prophet said. detractors and reluctant adherents to the ḥudūd maxim arguably aimed to maintain the ideal of judicial subservience to divine law. that Ibn                                                                   3 “Stratagem” (ḥīla) was Ibn al-Qayyim’s label. but could just as easily be regarded as merely a stratagem to avoid the ḥudūd punishment.was by no means absolute. and the confession would be preferred. it seems. the witnesstestimony and the confession in that scenario would not be entertained simultaneously. Quite to the contrary.” by analogy to the Case of Māʿiz.” from which they derived their understanding of juristic discretion and authority (as alluded to in Chapter 2). In terms of epistemic authority. it would become the imām’s prerogative to either impose the ḥadd punishments despite having less than the requisite multiple confessions). he could have repented and God would have accepted it.” If he had fled from the ḥadd to tawba. in such cases. This understanding of legal authority in turn drove their interpretive framework and pushed substantive maxims like the ḥudūd maxim to the sidelines. they identified textual tools that provided mechanisms for flexibility in the law. He did not regard it as an authentic ḥadīth. nor did he agree with practices of ḥudūd avoidance on the basis of status hierarchies. These aids allowed them to remain true to textualist and epistemic ideals without succumbing to the rationalist methodologies underlying the expansion of doubt jurisprudence amongst the other schools. Ibn Ḥanbal: Faithful Agent of Mixed Traditions Ibn Ḥanbal had good reason to reject the ḥudūd maxim.3 It was precisely for this reason. II. I argue that they did so based on an early theological view of “God’s rights. but that did not necessarily mean that he saw it to be illegitimate stratagem. Ḥanbalī Shubha A. a refusal to affirm the confession more than once would create a deficiency in the evidence that could not be trumped by the testimony. For Ibn al-Qayyim. “if only you had left him alone. 6:480-81 (describing one such permissible stratagem to avoid ḥudūd punishment if arrested by confessing once to the ḥadd crime such that witness-testimony would inadmissible.

Ibid. 324  6 7 8   . (dhawū ʾl-hayaʾāt).. it was not. that is. Ibn al-Qayyim. No blanket order to overlook their ḥudūd infractions would have been acceptable to him. 6:414 (citing the ḥadīth with the ḥudūd exception: aqīlū dhawī ʾl-hayaʾāt ʿatharātihim illā ʾl-ḥudūd). see ibid. see George Makdisi. the one with the ḥudūd exception (advising against holding those of high status responsible for indiscretions. and discussion below. for ḥudūd enforcement was mandatory—a requirement legislated by God specifically without regard to status. Jāmiʿ. times.p. including the case of ʿAlī cited in Chapter 1.Ḥanbal accepted only the modified version of the “overlook” tradition..”8 Rather. and jurisprudential and theological thought. Neither the Qurʾān nor the Prophet ever referred to pious. 6:414 (dhawī ʾl-hayaʾāt). but for criminal law. Serious crimes and moral offenses that invoked ḥudūd liability required punishment for those of high status like anyone else. (aqdāmuhum bi-warṭa). law-abiding people as “those of high station.5 had read “those of high station”6 to refer to those who typically obeyed the law and were known for their probity. unless they involved violations of ḥudūd laws). commenting on Ibn Ḥanbal’s version of the prophetic “overlook” saying: “overlook the faults of those of high station in matters other than ḥudūd”. Jāmiʿ. Accordingly. 4 Ibn al-Qayyim. 5 On Ibn ʿAqīl’s life. 1963). Ibid. Later Ḥanbalī jurists elaborated this view. Ibn ʿĀqil et la résurgence de lʾIslām au XIe siècle (Ve siècle de lʾHégire) (Damascus: n. the ordinary meaning of the term is understood to be people of high                                                                                                                                                                                                 further discussions of acceptable ḥadd-averting ḥiyal. 6:479. 513/1119). a lenient and forgiving stance was conceivable. in matters of social relations and where the faults were not serious.7 But his famous intellectual descendant Ibn alQayyim (d. 751/1350) said that this interpretation was not so obvious. Ibn ʿAqīl (d. but sometimes made mistakes when faced with exceptionally difficult circumstances.4 The famous 5th/11th century Ḥanbalī scholar.

“is a significant matter from the standpoint of the ideals of this complete Law and its policies ….”13 All of this would seem to indicate that Ibn Ḥanbal and his followers radically rejected the ḥudūd maxim in all its forms for deep existential reasons: it not an authentic ḥadīth and it seemed to have been abused to benefit those of high status.”12 This. 10 11 12 13 Ibid. in part based                                                                   9 Ibid. Namely. for God specifies that [ḥudūd laws] are to be enforced against those of high status just as it applies to those of low status.10 If one of them was known to be of high moral character. Ibid. Yet it did not turn out to be the case that Ḥanbalīs rejected the maxim outright. they qualifiedly accepted it at some turns and marginalized it at others. but made a misstep. he highlights the Prophet’s comment made at the conclusion of the Case of the Makhzūmī Thief. 325    . the idea behind the ḥadīth is that we should not hasten to punish him or her for that occasional misstep—so long as it was minor.. but imposed ḥadd sanctions on those of low station.9 These are people that God singled out with a type of honor and preference. Ibn al-Qayyim concluded. I would cut off her hand. [which were] established for the best interests of the people in this life and the next. that “even if [my own daughter] Fāṭima bt. status in terms of their honor. nobility. low status: waḍīʿ). (dhawū ʾl-aqdār bayn al-nās min al-jāh waʾl-sharaf waʾl-suʾdad). (high status: sharīf.”11 Ibn al-Qayyim then combined the overlook saying with the Prophet’s comments about egalitarian punishment to underscore the point. “The Children of Israel came to ruin in that they used to let the nobles who stole go free.” and in another version. “Rather [we are to] overlook his fault so long as it is not a ḥadd crime. Ibid. or leadership standing. Instead. (takrīm wa-tafḍīl). Muḥammad stole. 6:415-16 (ideals: maḥāsin). (low station: ḍaʿīf).

that the Prophet “avoided … the ḥadd sanction” in at least one case of rape. Ibn Ḥanbal’s student Isḥāq b.14 In his jurisprudence. Some applied the ḥudūd maxim—albeit not always attributing it to the Prophet—and. 275/888) disagreed with his teacher’s view that drinking intoxicating beverages warranted ḥadd punishment even if one did not get drunk. he noted other instances where there was no ḥudūd liability. invoke the ḥudūd maxim). disagreed with Ibn Ḥanbal’s rulings of ḥudūd imposition in ambiguous cases. incidentally. he aimed to adhere faithfully to the dictates of what he took to be authentic texts. 326    . Recall that Ibn Ḥanbal accepted a tradition related to the ḥudūd maxim in language reminiscent of it. * * * Amongst subsequent Ḥanbalīs. based on other such earlier precedents from ḥadīths that he had authenticated (but which did not. Ibrāhīm (d. various scholars fell on each side of the equation. For example. To be sure.15 This combination of requiring strict imposition of ḥudūd punishments in some instances but favorability to ḥudūd avoidance in others was but a faithful reflection of traditions that went in both directions—toward ḥudūd imposition and avoidance. 5:416. He perceived some degree of doubt as to whether the ḥadd punishment was due for drinking intoxicants or for intoxication. Isḥāq—                                                                   14 See Ibn Ḥanbal. on its basis. 15 Ibid. Rather.on the rather ambivalent view that Ibn Ḥanbal had of it and in part because of the necessity of dealing with doubt for which the maxim was handy. Musnad. Ibn Ḥanbal did not then try to mediate the competition between the divergent traditions through the ḥudūd maxim or otherwise. The result was that the competition remained both as to the rulings of ḥudūd imposition versus ḥudūd aversion and the ḥudūd maxim itself.

like oil and water: each side subscribed either to the ḥudūd maxim with its ḥadd-averting shubha or to a strict                                                                   16 See Isḥāq b. His writing on criminal law instead listed instances of mandatory ḥudūd imposition and instances where there was no ḥudūd liability. 193-94 (on theft: listing instances where the ḥadd sanction for theft does not apply. e. based on a prophetic ḥadīth that “even small amounts of drinks that are intoxicating in abundance are ḥarām. children’s property on the part of parents. prohibited items. In the old traditionist style. taken at face value. 334/945)—who authored the main legal handbook relied upon in the Ḥanbalī school—did not mention the maxim. with which he was familiar and presumably upon which he relied. Khiraqī. both positions were based on ḥadīth rulings in specific historical Ibn Ḥanbal—thought that drinking any intoxicant was illegal.”16 But he held that the ḥadd punishment did not apply because of the principle requiring that ḥudūd penalties “be averted by shubha. 327  19   . At times. Masāʾil al-Imām Aḥmad b. Mukhtaṣar. Ḥanbal. the positions were at odds. over time. 17 18 Ibid.18 This was in contrast to Isḥāq’s invocation of the maxim and its centrality to the contemporary Mālikī.”17 The famous Iraqi jurist Abū ʾl-Qāsim al-Khiraqī (d. This being an abridged handbook of law. he does not cite the ḥadīth-bases for these exceptions. See discussion above in Chapter 4. a master’s property on the part of a slave). Ibrāhīm. including theft of dates or fruit. but they are well known in the ḥadīth literature from the collections a century before—including Ibn Ḥanbal’s Musnad.. and Shāfiʿī ḥudūd jurisprudence—the eponyms of which all accepted and cited the maxim and whose students pursued increased application of it. Ḥanafī. in different ways. See.19 What we see with the Ḥanbalī criminal law positions reflects the same mixture as the traditions themselves. 2:265. The constituent parts of Ḥanbalī criminal law and their own version of doubt jurisprudence—at least so far as the rulings and the orientation to the ḥudūd maxim went—were to become ever more assorted.

rule of ḥudūd imposition with exceptional cases of non-ḥadd liability. B. 458/1066). as the inclusion of the ḥudūd maxim into Ḥanbalī works was not an unedited lifting nor was it uniform. By this time. jurists regarded it as a prophetic ḥadīth and made it central in their law books penned in all the major centers of the Islamic world in lands as farflung as Central Asia and Andalusia. in the process of (at least implicitly) arguing against the divergent rulings of other law schools. 328    . the ḥudūd maxim had become common parlance of ḥudūd laws in every other school—Sunnī and Shīʿī alike. Ibn al-Bannāʾ (d. Perhaps they were merely mimicking the place of the maxim in the other schools by then where it had become central and well-settled.: Harvard Law School Islamic Legal Studies Program. To begin with the latter. did not. Aḥmad al-Kalwadhānī (d. 510/1116). the two went together. At other times. some—though by all means not all—Ḥanbalī jurists begin to regard the ḥudūd maxim as a ḥadīth and apply its principle of ḥadd-aversion by way of shubha. Abū Yaʿlā mentions ḥudūd avoidance only when defending the Ḥanbalī views in contexts that were more polemical than normative for his own school. while their slightly older but much more prominent contemporary.20 In his own handbook of Ḥanbalī rules. Mass. The Ḥudūd Maxim in Accord with Ḥanbalī Traditionism: Limited Ḥudūd Avoidance By the post-formative or “professional” period in the 5th/11th century. leading Ḥanbalīs of this period. 478/1078-9) and Maḥfūẓ b. Around this time. For instance. Competing Texts: The Relationship Between al-Mawardi’s and Abu Yaʿla’s al-Ahkam alsultaniyya (Cambridge. accepted the ḥudūd maxim as a ḥadīth. al-Jamīʿ                                                                   20 Nimrod Hurvitz. like an emulsion of shubha and ḥadd-avoidance held together by the ḥudūd maxim. But perhaps there was more to it than that. 2007). Qāḍī Abū Yaʿlā (d.

Polk (Boston: Beacon Press. 499-523 (listing differences between the two and noting that Māwardī penned the original text). Stanford J. 308: lā yuḥadd).A. For the view that Abū Yaʿlā copied Māwardī’s tract and “Ḥanbalized” it.. al-Qāḍī Abū Yaʿlā al-Farrāʾ wa-kitābuh al-Aḥkām al-sulṭāniyya (Beirut: Muʾassasat al-Risāla. 264: saqaṭa ʿanh al-ḥadd). 1-15. whether the ḥadd is due or not on a man who has sex with a slavewoman who is his foster sister if he knows it is illegal (p.” The Muslim World 64 (January 1974). stealing a muṣḥaf) also based on earlier precedents and ḥadīth. Competing Texts. 1983). he made mention of neither the maxim nor shubha.23 But as                                                                   21 Qāḍī Abū Yaʿlā. Hurvitz. “A New Look at al-Aḥkām al-sulṭāniyya. 311/923) and Khiraqī (d. The absence of shubha here is in contrast to his discussions in a separate work. 334/945) had already outlined—both based on well-known ḥadīth and opinions attributed to Ibn Ḥanbal. Polk (Boston: Beaconṣaghīr. most of which Abū Bakr al-Khallāl (d. For example. Here. e. Shaw and William R.22 According on one view. see Muḥammad ʿAbd al-Qādir Abū Fāris. See H. of the political context surrounding Māwardī and ideas about how it motivated the writing of this work. nor for retraction of a confession (p. 1962). ed. Donald Little. ibid. “Some Considerations on the Sunnī Theory of the Caliphate. “al-Māwardī’s Theory of the Caliphate.g. for theft of dates. 265: wajaba ʾl-ḥadd).g. 309. For Māwardī’s use of the ḥudūd maxim in his Aḥkām and elaboration of the principle in his Ḥāwī. non-liability (e. a contemporary who fully adopted and expanded on the ḥudūd maxim at length in his works. For a comprehensive review. Jāmiʿ. Māwardī wrote his text in response to the caliph’s request for a tract that would help restore the ʿAbbāsid caliph’s authority by clearly outlining the areas of caliphal jurisdiction as against the Būyid regional rulers. see Henri 329    23 22 . 141-50. Gibb introduced Māwardī’s scholarship to an English speaking audience in the 1960’s. etc. see Chapter 5. representing the two major strands of thought internal to the Ḥanbalī school.R. Shaw and William R. But there is ḥadd liability for witnesses who give false testimony as to zinā (p.. he reflects what seems to be a running theme in Ḥanbalism: places where Ibn Ḥanbal himself indicated divergent positions on questions of ḥadd liability. Stanford J. esp.. who had reduced the caliph to a figurehead and enjoyed effective control over the state. some years later.” in Studies on the Civilization of Islam. Some scholars have posited that Abū Yaʿlā had taken and modified the Aḥkām from Māwardī. (p. Abū Yaʿlā largely follows his forebears’ structure and rules and notes areas of their disagreements.21 But not so in his Aḥkām al-sulṭāniyya. he also adds a few other cases of ḥadd liability vs. Interestingly then.” in Studies on the Civilization of Islam. 151-65. al-Aḥkām alsulṭāniyya. a tract on political theory that mirrored (or responded to) a work of the same title written by his famous Shāfiʿī contemporary Māwardī. 1962). Abū Yaʿlā says that there is no ḥadd liability for a man who sleeps in his house with a woman whom he thinks is his wife. Gibb. he mostly presents the instances of ḥadd liability and non-liability in terms of mandatoriness. 307ff. ed. where he does include both shubha and the ḥudūd maxim—though aiming to confine discussions of them to Ḥanbalī doctrine. noting that Ibn Ḥanbal indicated both sides: wa-qad awmaʾa Aḥmad ilā ʾlwajhayn).

Paris: P. In their treatments.. Ibid. they discussed the caliph on the margins (where he resided) of a wider discussion emphasizing the duties of several other officials in multiple jurisdictions in diverse regions. 38-39. Ibid. 1968]..24 Māwardī’s work devotes only a single chapter to the caliph’s interest..Nimrod Hurvitz has argued.30                                                                                                                                                                                                 Laoust. he posits that “[t]he Aḥkām is a document that was composed by members of the establishment for members of the establishment about the roles of the establishment.28 In that sense. in which each excludes the legal school of the other in his analysis). 41.26 No longer able to appeal to earlier notions of centralized caliphal authority. 5. Geuthner. 330    . 42 (citing the introduction to Māwardī’s Aḥkām). and arguing that the two works of Aḥkām represented longstanding tensions between juristic traditions of Māwardī and Abū Yaʿlā.27 Hurvitz also argued that Abū Yaʿlā and Māwardī were both establishment men.. 28 (questioning full-sale copying.” Revue des Études Islamiques 36 (1968): 11-92 [repr. noting that some sections draw on similar sources so appear similar while others are quite different. Competing Texts. Ibid. Hurvitz. and it otherwise strengthens the positions of the Būyid establishment.25 The two authors were less concerned with challenging the establishment than with setting guidelines ensuring community cohesion and rule of law in a radically changed political landscape of decentralized rule. Abū Yaʿlā and Māwardī were up to something else. 41-42. “well-connected judges who had access to courtiers and caliphs and were therefore part of the ruling elite” to which their texts were explicitly addressed and had the effect of supporting. 25 26 27 28 29 30 24 Ibid. Ibid. serving the public interest (maṣlaḥa) became the new overarching standard to bind the community.”29 Hurvitz is agnostic on which Aḥkām was the original. “La Pensée et l’action politiques d’al-Māwardī (364-450/974-1058). 42.. Ibid.

it is unlikely that resemblances between the two works are explained by the fact that the two were part of the same legal community and may have reported on long-standing debates based on particular scriptural and legal arguments. See ibid.”37 This.35 He concludes that the two sides “agreed on the fundamentals of Islamic public law and its methodology”36 and that both cited historical norms of political and administrative practices of governance as authoritative legal doctrine of Islamic public law.33 The more interesting question is to ask why there are differences. rational-minded Shāfiʿīs like Māwardī34 and anti-theology traditionist Ḥanbalīs like Abū Yaʿlā as to the political leadership of the community. reflected an “interesting partnership between rulers and scholars. Ibid. 43. 25 32 33 Ibid.31 Likely.. 34 35 36 37 They are called mutakallimūn in Abū Yaʿlā’s Aḥkām. modified to fit Ḥanbalī doctrine in which the ḥudūd maxim as such was largely foreign to that school during this period.” wherein rulers made policies that formed a sort of raw material from which the jurist-scholar                                                                   31 See ibid.”32 Establishing dating and sequence is not important to the argument here (though a review of the discussions of criminal law and the ḥudūd maxim makes it appear that Abū Yaʿlā copied from and condensed Māwardī’s text). Ibid..though in his text he seems to favor the idea that Abū Yaʿlā copied Māwardī’s more lengthy text. Ibid. Given the near-verbatim language. for Hurvitz. That is. 331    . Hurvitz suggests that the culprit is a long-standing dispute between pro-theology. 42.. “both consider[ed] the ruling elite’s policies as an important and legitimate source of legal doctrine. the two authors shared circles and thus motives to such an extent that “one of them felt comfortable enough to copy large parts from the other’s text.

he notes permissions for ḥudūd-avoidance in limited situations—as had Ibn Ḥanbal. It seems to ignore key differences between the two scholars’ approaches. commenting that both “integrate historical and contemporary political practice into the legal narrative of Islamic public law” to support his broader conclusions. he notes that Māwardī includes nine historical accounts that refer to caliphs. 25.extracted the rules for public law by flexibly choosing policies and elevating them to normativity to fit their own historical circumstances. Accordingly. presided over by the caliph). Though both adopt an accommodationist stance toward the establishment. at the end of the day. 39 In the chapter on maẓālim (extraordinary jurisdiction to address grievances. give Abū Yaʿlā’s omissions of Māwardī’s historical anecdotes much weight. Khiraqī and other Ḥanbalīs in their rulings identifying certain instances of non-ḥadd-liability based on scenarios presented in the ḥadīth literature (the same ones he mentioned in this legal handbook. the two do not agree on methodology and their discussions were quite different: Abū Yaʿlā was a traditionist thoroughly concerned with finding “the” right answer based on doctrines internal to the Ḥanbalī school (to which he limits his arguments). while Abū Yaʿlā includes none. Abū Yaʿlā does not cite historical anecdotes beyond the first few generations as authoritative. Ibid. al-Jāmiʿ. He is attentive to issues of textual authenticity and builds on the foundation of Ibn Ḥanbal’s appeal to particular historical examples of public policies: those of the Prophet and the early community. Case in point: the ḥudūd maxim.. In this context. Abū Yaʿlā was arguing against Māwardī. In his discussion of the public jurisdiction over criminal law. He does not. 45-48.39 And he carefully avoids attributing to the Prophet reports that he and his Ḥanbalī forebears do not conclude are authentic. as Hurvitz himself was aware..38 This explanation is not entirely satisfactory. and described in Chapter 2). however. Khallāl.. 47. he was against what had                                                                   38 Ibid. Ibid. 332    .

always affirming the Ḥanbalī rule. or ignorance that zinā is illegal in the first place. he writes that if a man “claims plausible shubha as an excuse for committing zinā. see his Aḥkām. wherein the latter notes that “the Prophet said: ‘avoid ḥudūd in cases of doubts or ambiguities. Abū Yaʿlā.become by then the widespread idea that the ḥudūd maxim was Prophetic. e. qāla ʾl-Nabī ṣallā ʾllāhu ʿalayh wasallam: idraʾū ʾl-ḥudūd biʾl-shubahāt). but he decidedly avoided calling it prophetic and was at pains to limit its scope to the “correct” situations as related by the Ḥanbalī school. 254 (wa-idhā ʾddaʿā fī ʾl-zinā shubhatan muḥtamalatan min nikāḥ fāsid aw ishtabahat ʿalayh bi-zawjatih aw jahila taḥrīm al-zinā wa-hum [sic = huwa. 265] ḥadīth al-Islam. 254] al-ḥadd). he mentioned ḥadd-averting shubha.”40 This is a verbatim reproduction of the language of the other Aḥkām—minus Māwardī’s citation of the ḥudūd maxim as a prophetic ḥadīth to bolster and explain the argument. then the ḥadd sanction is to be avoided. 42 See. even if they are married. we see that Abū Yaʿlā only draws on anecdotes from the earliest generations (salaf) as authoritative and he hedges a bit when including                                                                   40 Abū Yaʿlā. as in Māwardī’s Aḥkām. duriʾa bi-hā ʿanh al-ḥadd. Thus. as in Abū Yaʿlā’s Aḥkām. 265 (wa-idhā ʾddaʿā fī ʾl-zinā shubhatan muḥtamalatan min nikāḥ fāsid aw ishtabahat ʿalayh bi-zawjatih aw jahila taḥrīm al-zinā wa-huwa ḥadīth al-Islam. 266 (noting that intercession in a criminal trial is barred and cannot facilitate absolution from ḥudūd-liability (isqāṭ al-ḥadd)). 265 (noting that Ḥanbalī rule—against that of Abū Ḥanīfa—that if a man has sex with a maḥram. 41 For the ḥudūd maxim as a prophetic ḥadīth in Māwardī’s work.. being a recent convert. for instance. 333    . such as defective contract. Likely having copied the work from Māwardī—given that he did not otherwise recognize the ḥudūd maxim in his other works—Abū Yaʿlā was sure to delete the prophetic attributions appended to the maxim and to modify the rule to fit his school’s doctrine—without reference to Māwardī or any other jurists.g.’”41 Abū Yaʿlā’s section on ḥudūd is replete with such direct references to shubha and oblique references to the ḥudūd maxim.42 In this way. genuine confusion as to the identity of his wife. Aḥkām. duriʾa bi-hā shubha [sic = ʿanh. he is ḥadd-eligible because such fatally defective contracts cannot overcome the textual prohibition such that it creates a ḥadd-averting shubha (lā yakūn al-aqd maʿa taḥrīmihā [al-nikāḥ] biʾl-naṣṣ shubhatan fī darʾ al-ḥadd)). To be sure. Aḥkām. 263 (defining zinā as sex in the absence of a validating relationship or the semblance (shubha) of one).

Still.43 To return to the original point: what was the argument about and how did the substance of the debate reflect or dictate Abū Yaʿlā view of legal maxims? Hurvitz provides interesting insights when he says that both authors were writing for the establishment to benefit the establishment. others ḥadd avoidance. Māwardī cites political anecdotes from other periods. and so argues with respect to the three major traditions (as Hurvitz points out). they grappled with competing traditions from the period they agreed carried the greatest weight of authority—some favoring ḥadd imposition. nonetheless. but accepting the practice in limited situations backed by authoritative ḥadīth texts giving rulings as to ḥadd liability on a case-by-case basis. that have a weak verbal-textual pedigree but have been recognized by the Ḥanbalī forebears as rooted. accepts the opinions of the other Sunnī schools—though not the Ḥanbalī school—as valid if not correct. some privileging the elite. he views it as acceptable to appeal to doctrines far beyond the text. and in practice. others insisting on egalitarianism. in textual precedent of practice.principles emanating from their practices. Like his predecessors. in some ways. In essence. is rationally minded (believes in qiyās). See Hurvitz.                                                                   43 By contrast. Abū Yaʿlā’s approach echoes Ibn Ḥanbal’s move of rejecting the ḥudūd maxim as a ḥadīth. their accommodation of the establishment was not absolute. Abū Yaʿlā aimed to sort out the traditions with a sort of textual originalism as a means to limit human discretion and submit to God’s exclusive prerogative to legislate. Competing Texts. So. But if so. he can be said to have been concerned with accommodating the establishment elite. like the ḥudūd maxim. 334    . but on the basis that he was articulating and navigating through the thicket of conflicting traditions that might confuse or give rise to rationalist forms of resolution—as Ḥanbalīs accused other schools—that smacked of arbitrariness and judicial lawmaking.

Rather.The argument between Māwardī and Abū Yaʿlā then was not between Shāfiʿīs and Ḥanbalīs over political leadership. extratraditionist scholars was his way of holding true to his traditionist methodological commitments. Each side displayed some degree of fidelity to theological and legal orientations. That Ibn Ḥanbal rejected any sort of theology or delegation to anyone but God for expression of law in the words of the text. the dispute was over religiomoral and legal authority as represented in legal methodology. demonstrating that theirs was less a fight about political leadership than a dispute over particular rulings. who subscribed to a theological outlook on law that drafted jurists as its interpreters. Māwardī was willing to accommodate scholars of his ilk. explains why Māwardī largely excluded Ibn Ḥanbal from discussion of the juristic community in his Aḥkām. His rejection of these pro-theological. They were to begin with the text but could fill gaps in the law through analogical reasoning and categorization of rules like ḥudūd aversion and ḥudūd imposition to arrive at a theory of shubha that allowed them to address new situations on the basis of the ḥudūd maxim. This is the 335    . and both writings accommodated the ruling elite in that dynamic. That he shared this outlook with members of the Ḥanafī and Mālikī schools explains the comparative nature of his jurisprudence and his broad articulation of the ḥudūd maxim as a rational principle beyond its prophetic attribution. That he restricted the law to textual rules of particular cases covered by the Prophet and the earliest community rather than broad-based ideas of shubha explains why he omitted references to any but Ḥanbalī jurists and why he limited citations of his historical anecdotes to that community. The reverse is true for Abū Yaʿlā. They agreed that those in power—even if they achieved it by force—were owed near total obedience.

etc.45 Taken together. 3:1120 (noting that the Qurʾān requires four witnesses.methodological explanation. that insane people and minors cannot be ḥadd-eligible. though with a key difference: they had come to regard the ḥudūd maxim as a ḥadīth. Umm (1961). was erroneous in Ibn al-Bannāʾ’s view because it diverged from both the texts of the traditions giving rulings on ḥudūd laws and from the ḥudūd maxim.44 Thus. the multiple instances of ḥadd aversion. Ibn al-Bannāʾ (d. There was the accommodationist one as well.). 471/1078-9) mentioned the maxim to dispute Shāfiʿī’s divergence from Khiraqī’s rule that ḥadd liability for zinā requires four confessions or the testimony of four eye-witnesses. 6:133. Perhaps they were overcome by the consensus amongst scholars of other schools as to its prophetic origins. 46 47 45 Ibid. 3:1120 (idraʾū ʾl-ḥudūd biʾl-shubahāt). together with the prophet’s direction to “avoid ḥudūd sanctions in cases of doubt”46 support Khiraqī’s position because they show a tendency against ḥadd liability. They retained fidelity to Ḥanbalī principles by relying on traditions to define shubha rather than any broad definition that risked introducing human discretion into the legal equation. Ibid. which Hurvitz well outlined. 471/1078-9). * * * Not much later. 336    . he said. that an ill person convicted of a crime warranting a penalty lesser than death can request delayed punishment.47 The same                                                                   44 See Shāfiʿī.. 3:1120-21 (taghlīban li-isqāṭ [al-ḥudūd]). Muqniʿ. that—contrary to Abū Ḥanīfa’s rule—retracted confessions can remove ḥadd liability. Shāfiʿī’s position. he cited several individual rulings that suggest ḥudūd aversion or mitigation whenever the heightened requirements for proving zinā were not met. Ibn al-Bannāʾ (d. that ḥadd liability was due after only a single confession. which he took to be another authentic tradition favoring ḥudūd avoidance. Abū Yaʿlā’s successors followed broadly in his footsteps.

if they “touch women and do not find water [to purify themselves in preparation for prayer]. Muqniʿ. 116-17. 4:43. [to] perform dry ablution [with clean dust]. 180. (attributing the opinion that lustful touching breaks wuḍūʾ to mainstream Ḥanbalīs and Mālik. see Whitman. see Chapter 6. Qurʾān. Other jurists—mainly Ḥanafīs—take the term to be a figure of speech51 for sex and read the verse to require an ablution redo only when a man and a woman have sex. invoked the maxim too in the course of defending a conservative Ḥanbalī position on ritual purity in a long tract that illustrates his interpretive philosophy: a combination of traditionism and preempting ambiguity by choosing the “safer path. 510/1116). 1:313 (kināya). as the Prophet had indicated in the Case of Māʿiz: “if only you had let him go” (taking his attempted escape to be a retracted confession). 189-202. Intiṣār. requiring him to redo it. 5:6 (aw lāmastum al-nisāʾa fa-lam tajidū māʾan fa-tayammamū).52                                                                   48 Ibn al-Bannāʾ. the word “touching” means just what it says—touching with the hand.applied—even more so—to situations where a convict retracts the confession during sentencing.48 The Baghdādī scholar and head of the Ḥanafī school during his lifetime. On the “safer path” doctrine in Christian moral theology that led parties presiding over criminal trials in medieval Europe to err on the side of finding nonliability.”49 The question was whether merely touching a woman invalidates a man’s ablution (wuḍūʾ). especially with desire. For further discussion in the Shīʿī context. 50 51 52 Ibid. Abū ʾlKhaṭṭāb al-Kalwadhānī (d. Reasonable Doubt. 49 Kalwadhānī (d. part methodological—revolving around how to interpret the word “touch” in a Qurʾānic rule instructing men. note 182 and accompanying text. or whether the ritually impure act that breaks it is actually having sex. and it obligates redoing the ablution. and concluding then that the latter should be even more acceptable than the former). Kalwadhānī. The uncertainty is part linguistic. 510/1116). noting that Abū Ḥanīfa and others hold that mere touching—whether lustful or not—does not break 337    .”50 For Ḥanbalīs. 3:1121 (arguing that canceling ḥadd liability for the entire sentence before it has been carried out is a more significant form of mitigation than cancelling a part of the sentence left after it has been started. 1:313-25. Intiṣār.

the general meaning of touching by the hand controls.”53 the Prophet forbade sale through touching—that is. the interlocutor argues that the prima facie meaning (ẓāhir) of the form lams means touching with the hand. See Kalwadhānī. Absent such a statement. Kāsānī. a jurist could only depart from the literal meaning of a text if there was some explicit textual indicator requiring him to do so. Sarakhsī. The Qurʾān itself used the word in another verse: “if … they had touched it [revelation sent on paper] with their hands. 338    54 55 56 57 58 . as here. Ibid. Ibid. the correct approach is to adopt them both). Kitāb al-Aghānī). Ibid. Kalwadhānī’s arguments are purely textualist. His interlocutor does not seem to have argued that the fact that the Qurʾān specifies touching with the hands in one place indicates that this mode of touching is not included in the word “touching” itself. used the term “touch with the hands. Mabsūṭ. in Aṣmaʿī.”55 and ʿUmar.. Intiṣār.54 early poets. (mulāmasa). (giving the example of a speaker saying “I mean ‘touching through sex’”). Kalwadhānī argued.” as in verse 6:7. you buy it. Instead. 1:314 (citing poetry by Bashshār b. Kalwadhānī. but that the prima facie meaning of the form lāmastum means sex. 6:7 (law nazzalnā ʿalayka kitāban fī qirṭāsin fa-lamasūhu bi-aydīhim). and citing the Shāfiʿī view that any touching—whether lustful or not—breaks wuḍūʾ) (citing in footnote. The literal meaning of “touch” mentioned in the verse is touching with the hand. inter alia. who were cited as linguistic experts on word meaning. Ibid. 53 Qurʾān. as attested in multiple ways. cf. an apparently pre-Islamic Arabian commercial practice of “you touch it. and that the specification of “with the hands. so that is what invalidates ablution.58                                                                                                                                                                                                 wuḍūʾ. Intiṣār.Both sides advanced a host of arguments to support their interpretations. Badāʾiʿ). ibid. 315 (Ḥanafī argument). an early authority who for Ḥanbalīs issued rulings that were not quite binding but extremely persuasive. 316-17 (the Ḥanbalī response: that when there are two possible meanings contained in a single word. reportedly mentioned kissing and touching56 as activities that precede sex. is necessary to devolve the sense of the phrase here to a figurative meaning of simple touching with the hands.57 As both sides agreed on a common interpretive principle.” where touching was taken as acceptance of an unspoken offer and the sale completed without the buyer examining the item. Burd.

dukhūl. The beginning of the verse requires simple ablution with water (wuḍūʾ) for minor impurities62 and full ablution for major impurities63 by taking a bath (ghusl). giving these examples: the use of “if you stand [for prayer]: idhā qumtum [liʾl-ṣalāt].. to the point that it becomes preponderant to the mind that “touch” too is used figuratively.59 and this indicates mutual action. First. or touching women and cannot find water to purify themselves. to mean preparation for prayer through making ablution after an impurity or sleeping. qurb. the Qurʾān as understood according to the people to whom it was revealed. (ḥadath. and the use of “or if one of you comes from relieving oneself: aw jāʾa aḥadukum min al-ghāʾiṭ. al-ḥadath al-aṣghar). It then advises those who become impure while traveling. also giving examples of words like entry and proximity to refer to sex: mubāshara. 1:315 (lāmastum). Second. simply using the term “purify” (fa-ʾṭṭahharū). one would expect that God would complete the structure of the                                                                   59 Ibid. (alongside touching.61 And fourth is an argument about linguistic structure. 339    61 62 63 . which is a textual indication that sex is meant. not contemporary usage). Ibid. mulāmasa). 1st/7th century Arab linguistic usage is authoritative for Qurʾānic meaning because the Qurʾān was revealed to the Arabs of that period.60 Third. but then expands to rational arguments on its basis.” to refers to the place of doing so).e. Here. (janāba. the word “touching” from the verse in question appears in the transitive form. the verse in question uses figurative language several times. 60 Ibid. and they used figurative speech like touching to refer to sex because of the impropriety (istiqbāḥ) of using a more specific and explicit term.The dissenting interlocutor in Kalwadhānī’s presentation began with the text as well. relieving themselves. Ibid. the verse only mentions dry ablution (fa-tayammamū) to substitute for the simple ablution using water. (fa-yaghlib ʿalā ẓann kawn hādhihi ʾl-kalima minhā. Ibid. al-ḥadath al-akbar). But structurally. He began with four textualist-originalist arguments (i..

but there is no ḥadd liability—in                                                                   64 Ibid.67 Here is where the crux of Kalwadhānī’s textualism comes in. not simple touching with the hand. the rule is incoherent as the Ḥanbalī rule on “touching” does not include touching men—which could very well come with the effect they fear if there are homosexual sentiments or desires. 1:320. Intiṣār. mā yurīdu ʾllāhu li-yajʿala ʿalaykum min ḥarajin wa-lākin yurīdu li-yuṭahhirakum wa-li-yutimma niʿmatahu ʿalaykum laʿallakum tashkurūn). Indeed.full sentence by substituting simple ablution for minor impurities and major ablution for full impurities. 1:322 (citing the ḥadīth describing the Prophet as having kissed one of his wives and then having gone to pray without renewing his ablution (narrated by ʿUrwa from ʿĀʾisha about the Prophet): annahu qabbala baʿḍ nisāʾih wa-kharaja fa-ṣallā wa-lam yatawaḍḍaʾ). 5:6 (Full text: yā ayyuhā ʾlladhīna āmanū idhā qumtum ilā ʾl-ṣalāti fa-ʾghsilū wujūhakum waaydīyakum ilā ʾl-marāfiqi wa-ʾmsaḥū bi-ruʾūsikum wa-arjulakum ilā ʾl-kaʿbayn wa-in kuntum junuban fa-ʾṭṭahharū wa-in kuntum marḍā aw ʿalā safarin aw jāʾa aḥadun minkum mina ʾl-ghāʾiṭi aw lāmastumu ʾl-nisāʾa fa-lam tajidū māʾan fa-tayammamū ṣaʿīdan ṭayyiban fa-ʾmsaḥū bi-wujūhikum wa-aydīkum minhu. mere touching usually does not come with that kind of desire or those kinds of effects as the Ḥanbalīs are assuming. Qurʾān.64 He added a few other arguments centered on prophetic practice65 and on analogical reasoning identifying the likely reason for the rule. the bottom line for Kalwadhānī’s opponent was this: purification is only required when there is something that causes actual impurity. and this simply does not occur through two “pure” body parts touching one another. featuring the ḥudūd maxim. that it always does so such that the rule should always require ablution with touching regardless of accompanying effects. 323. but there is no proof that they had sex. which we know is occasioned by sex. it is true that several rules in other contexts would not suggest his position in this matter if he were to argue on the basis of analogy. Cf. 1:323 (ḥaqīqat al-ṭahāra innamā tajib ʿan najāsa wa-ʾltiqāʾ ʿuḍwayn ṭāhirayn lā yaḥduthān najāsa). He argues that the rule makes sense if touching comes with or stokes desire that triggers a sexual discharge—which is an impurity that obligates ablution.. the two sides agree that if a man lays naked with a woman. But in fact. 67 66 Ibid. Ibid. The interlocutor argued that God has in fact completed the analogy.. 65 Kalwadhānī.66 In the end. 340    . 324-25. without needing to mention it explicitly: touching women—which comes last in the list—is the act that requires the major ablution. in the criminal law context. he said. there is no certainty that even if it does. First. the act is illegal. He rejected all of the above arguments based on two interrelated arguments.

”68 He added. Ibid. 1:319-20 (idraʾū ʾl-ḥudūd biʾl-shubahāt). In law. The verse says “touching. 341    . including that it is illegal to buy wine because it is the means to drinking it. 1:321.69 Essentially..” not arousal or sex. Accordingly. “ḥudūd laws are based on a principle of avoidance and non-liability.e. 1:319 (fa-ammā fī masʾalatinā fa-fīh iḥtiyāṭ liʾl-ʿibāda yaghlib). lāmastum ʿalā ʾl-lams biʾl-yad] aḥwaṭ liʾl-ʿibāda waʾl-bāb [sic = maʾāb?] fī ʾl-ʿibādāt [ilā] ʾl-iḥtiyāṭ).. are arational. so it means that the rule is indeed triggered with touching regardless of the other effects.). or                                                                   68 Ibid. see Chapter 6.. that translated into either a rejection of the ḥudūd maxim as a ḥadīth.. which is a ḥadd-eligible offense.. as Abū Yaʿlā and his forebears had done.70 Instead. ḥudūd are different. 69 70 71 72 73 Ibid. in cases of doubt. (here: taraddud). Ibid. explaining the import of the ḥudūd maxim. like those governing impurity and ablution. etc. For legal maxims. and this is his second point. it is better to appeal to the principle of precaution71 in interpreting the law to avoid such difficulties and ambiguities altogether—whether in matters of ritual worship or otherwise. Matters of ritual worship. 315 (al-ḥaml ʿalā dhālik [i.72 we adopt the safer path. that did not translate into accepting what they regarded as the broad and unwieldy applications of the principle that they took as favored by the other schools. Ibid.application of “the Prophet’s statement to ‘avoid ḥudūd sanctions in cases of doubt. If they accepted the ḥudūd maxim as a ḥadīth. requiring making ablution after sleeping because the latter is a means or has the possibility of triggering an impurity (khurūj al-ḥadath).73 This generation of 5th/11th century Ḥanbalī scholars was about defending Islamic law against the discretion-permitting theories of the other law schools. see also ibid. (mentioning other instances of seeming arational rules in ritual and non-ritual areas. For further elaboration of the precaution principle in the context of Shīʿī law. Ḥanbalism was textualism whose self-image was one of faithful servitude to scripture and sunna. (fa-ammā ʾl-ḥudūd fa-mabnāhā ʿalā ʾl-darʾ waʾl-isqāṭ). Ibid. we need not look for the operative cause because we do not base the law on presumptive reasons but on text.

ed. 416 (citing the maxim to explain why ḥadd liability for zinā requires male testimony based on the argument that Qurʾān. 624/1226).74 A century later. 1. Ibn Qudāma (d. Duhaysh (Beirut: Dār Khiḍr liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ. 763/1361) similarly signaled limited support for the maxim with his muted discussions of ḥadd-averting                                                                   74 For a preliminary discussion of Ibn Qudāma’s views. accept the ḥudūd maxim. as discussed in Chapter 1). (a similar use of the maxim for the bar against slave testimony). the ḥadīth literature. Ibn al-Qayyim (d. both commenting on Khiraqī’s law manual. and were verified from. as Ibn al-Bannāʾ and Kalwadhānī had done. 2:282.acceptance of the maxim as a ḥadīth but limitation of the principle. 342    . see his alWāḍiḥ fī sharḥ Mukhtaṣar al-Khiraqī. All three limited the principle to textual instances of ḥudūd avoidance from earlier cases that appeared in. For Ibn Abī al-Qāsim. 620/1223) and Ibn Abī al-Qāsim (d. If they did succumb to the overwhelming trend by their time amongst other schools. coming down on the side of Abū Yaʿlā-style limited ḥadd aversion. ibid. Contested Ḥudūd Avoidance It is difficult to say definitively what made Ibn al-Bannāʾ and Kalwadhānī to accept the ḥudūd maxim as a ḥadīth. though they did not regard it as a ḥadīth. that capitulation was not to last for long. signals that women’s testimony raises the specter of shubha for which the ḥadd should be avoided: wa-li-anna fī shahādatihinna shubha li-taṭarruq al-ḍalāl ilayhinna … waʾl-ḥudūd tudraʾ biʾl-shubuhāt). 2000). 4:413 (discussing ḥadd-averting shubha with reference to the Case of Māʿiz and applying the notion to retracted confessions: … li-anna rujūʿah shubha. Ibn Mufliḥ (d. 751/1350) too accepted the ḥudūd maxim (despite his protestations to the contrary. ʿAbd al-Malik b. The next generation of scholars by and large reverted to the longer standing Ḥanbalī approach exemplified by Abū Yaʿlā and those who preceded him—rejecting the ḥadīth basis for the maxim but accepting it as a valid principle nonetheless and applying it with the guidance of particular ḥadīth directives that were given priority in Ḥanbalī doctrine. ʿAbd Allāh b. see Chapter 1. waʾl-ḥudūd tudraʾ biʾl-shubahāt).

Cf. on the margins of Ibn Mufliḥ.g. Sulaymān alMardāwī (d. Yūnus al-Buhūtī (d. see Abdul Hakim I. these jurists give a slight nod to the concept. and passim (limited mention of ḥadd-averting and non-ḥaddaverting shubha). 10:59. 97. 2003). Sharḥ. E. Al. al-Dār al-Shāmiyya. ed.” in Studies on Islam. 1051/1641). e. 96. Taṣḥīḥ al-Furūʿ. 1:29 (citing the ḥudūd maxim. but on the basis that the correct Ḥanbalī opinion of two divergent Ḥanbalī rules stipulates that no ḥadd is due because the contract is deemed valid). as Ibn Mufliḥ presents and elucidates his own preference between the opinions of many earlier Ḥanbalīs—some of whom quoted the ḥudūd maxim as a ḥadīth and/or adopted an expansive shubha jurisprudence. 1981): 215-73.. this orientation calls on                                                                   75 Ibn Mufliḥ (d. Bayhaqī. M. See. Hilāl Muṣayliḥī Muṣṭafā Hilāl (Riyadh: Maktabat al-Naṣr al-Ḥadītha. and noting that most scholars say that minority cancels liability and that the very [juristic] dispute creates a ḥadd-averting shubha). Ḥāshiya. See also ʿAlī b. such that we can only say that there is khilāf as to mutʿa but the nikāḥ without walī about which the author [Ibn Mufliḥ] spoke is only khilāf amongst the exponents of the madhhab doctrine (ashyākh al-madhhab). [1960?]). Kashshāf al-qināʿ ʿan matn al-Iqnāʿ. ʿAbd al-Muḥsin al-Turkī (Beirut: Muʾassasat alRisāla. with no clearly identifiable temporal or geographical trend to predict which of the separate Ḥanbalī currents would dominate: acceptance of the ḥudūd maxim as an expansive principle of criminal law as had Ibn Qudāma. including Ibn Abī al-Qāsim in his Wāḍiḥ. Kitāb alFurūʿ. Qawāʿid. and other collections: idraʾū ʾlḥudūd biʾl-shubahāt mā ʾstaṭaʿtum) and 6:94 (li-anna ʾl-ḥudūd tudraʾ biʾl-shubhat ḥasab al-istiṭāʿa). Ijmāʿ. Swarz (New York. saying that the only genuine khilāf regards mutʿa—because it was an early juristic dispute from the period of the salaf and their successors. 772/1370). 77 76 In large part. Ibn Qudāma in his Mughnī. The Ḥanbalī School of Law and Ibn Taymiyyah: 343    78 . on the margins of Ibn Mufliḥ. 10:58-59 (similar. ed. a point worth considering since Ibn Qudāma. such that it is a dispute established by text (thabata bi-naṣṣ). and Kalwadhānī in his Intiṣār. 763/1361). “Hanbalite Islam. Cf. 99 (holding that there is no consensus: lam yathbut fīh ijmāʿ). if there is one. A major exception is the area of juristic difference (ikhtilāf).Matroudi. but the other forms have no clear basis for khilāf because they contradict no naṣṣ. Manṣūr b. is an overarching traditionist-textualist mentality governing their school and thus the tradition from which they write.75 And so it continued in the 8th/14th century and after. George Makdisi.shubha. 6:296.78 All things being equal.76 or acceptance of the maxim but extremely constrained application of it as had Ibn al-Qayyim. 1997). 10:57 (noting that the absence of zinā is required for ḥadd liability for zinā: wa-yushtaraṭ intifāʾ al-shubha). Ibn alLaḥḥām. Kitāb al-Furūʿ. Most likely. Zarkashī (d. 61. For a recent study. Oxford: Oxford University Press. Kitāb al-Furūʿ. 10:59 (accepting the opinion that marriages of disputed validity—such as temporary marriage or marriage without the permission of the woman’s guardian—create ḥadd-averting shubha when it comes to zinā accusations. ed.L. ʿAbd Allāh b. al-Fiqh al-Ḥanbalī al-muyassar bi-adillatih wataṭbīqātih al-muʿāṣira (Damascus. see also 95. 885/1480). 319/930). see Wahba al-Zuḥaylī. Beirut: Dār al-Qalam. 6:96 (attributing a new ḥadīth form of the maxim to the Prophet: a combination of the standard form and some iteration of versions two or three that appear in Tirmidhī. see also ibid.77 The only unifying feature linking the two approaches. the stripped down shubha jurisprudence is deliberate.g. they limit shubha (some hardly mentioning it at all) and ḥudūd avoidance to explicit cases of precedents from ḥadīth rulings. For general overviews of Ḥanbalism. 98 and passim (multiple rulings of no ḥadd liability because of shubha. or ḥadd liability because of the absence of shubha (li-ʿadam al-shubha). Ibn Qundus.. Ibn al-Mundhir (d..

2006). 2. the growth of Islamic law and society. They each have exceptionally different takes on the maxim. Culture and Civilization in the Middle East (London. For a general biography and discussion of the life and times of Ibn Ḥanbal. or any other instance of ḥudūd aversion narrowly. 2006). and grudging acceptance of the maxim because of that same authority but its limitation to strictly text-based case-by-case rulings on the other. and their encounters with new cases being resolved in different ways amongst other schools in pluralistic legal systems. wherein he greatly expanded on Khiraqī’s condensed statements in his                                                                                                                                                                                                 Conflict or Conciliation. and the line between Ḥanbalī ḥudūd-maxim proponents and opponents did as well. When it came to the ḥudūd maxim and ḥudūd jurisprudence in particular. Ahmad ibn Hanbal (Oxford: Oneworld. 620/1223) and Ibn Taymiyya (d. They attempt to do so on the basis of explicit ḥadīth rulings. pp. the school’s leaders vacillated between liberal acceptance of a ḥudūd maxim that continued to enjoy widely recognized legal authority amongst the larger juristic community on the one hand. For further discussion. 344    . This was due to the longstanding internal diversity (which Abū Yaʿlā tried to mediate). shubha. 24-28. see Christopher Melchert.Ḥanbalī jurists to define the scope of the ḥudūd maxim. see Chapter 1. almost at opposite poles from one another. 728/1328). but they ended up needing to address juristic disputes both in and outside of the Ḥanbalī school. Expanded Ḥudūd Avoidance Ibn Qudāma cited the maxim repeatedly throughout his long section on criminal law. New York: Routledge. the ambivalence that started with Ibn Ḥanbal and was exhibited by his students continued. * * * Two later Ḥanbalī scholars are exceptional in the general Ḥanbalī ambivalence toward the ḥudūd maxim—Ibn Qudāma (d.

especially with cases proved by confessions). Ibn Qudāma categorized as ḥadd-averting shubha mistakes of law. Nuʿmān b. the ḥadd is only due for drinking an intoxicant if the person knows that the drink—in large quantities—is intoxicating. there is ḥadd-averting shubha: alḥadd alladhī yandariʾu biʾl-shubahāt). ibid. 12:347-48. which include the absence of shubha as a requisite element for ḥadd liability. there is the Prophet’s well known saying. Thus. In the first case.. I refer to uncertainties in substantive law and procedural standards from the perspectives of both the accused and the jurist. 12:345-46. which stipulates that 345    .” which makes plausible— though erroneous—a father’s belief that he has an ownership interest in his son’s property for which taking is not theft.80 and doubts about whether the criminal elements themselves were present. In all such cases. 12:354 (noting that to punishable zinā must be absent any shubha. says Ibn Qudāma. the wide—though incorrect— assumption that any type of ownership validates sexual relations may create a genuine confusion that the rule applies to full. the expanded Shīʿī version below in Chapter 6]. 12:345. which—in his presentation—stipulated that ḥadd liability arises only in the absence of shubha and requires the judge to ascertain whether there is any. Part of that inquiry involves the definitional elements of the crime broadly. sex with a jointly owned slavewoman or a father’s taking of his son’s property. which the judge should aim to remove. 82 81 See ibid. Ibn Qudāma not only asserted that the maxim applied in every category to which non-Ḥanbalī proponents of the maxim applied it. he or she is not ḥadd eligible. Mughnī. There.g. 459-63: Sex where shubha is possible based on purportedly validating legal text or status-relationship is not ḥadd-eligible. 12:501: If a person mistakes an intoxicating beverage for a non-intoxicating one. 80 E. with only certain limitations.79 mistakes of fact. He notes here that there is no ḥadd liability against a rape victim (mukraha) because of the “ḥadīth al-rafʿ” [Cf.. Another example is where a man sleeps with a slavewoman belonging to his son or his wife with her permission—the first for the above stated reason. and the second based on a ḥadīth and a precedent of a 1st/7th century Medinese governor-judge of Damascus (who spent some months judging in Kufa)..g. who found no ḥadd liability in such case and attributed the verdict to following a prophetic precedent. In saying that he applied it to every category of ambiguity. See ibid. for example.. e. appear in their definitions of zinā. See ibid..concise law manual. concerning voluntariness and criminal intent. In the second case. The typical indication of jurists’ folding of shubha into the substantive elements.82 as does ignorance of the law.or part-ownership.81 Another part of this latter inquiry goes to issues of mens rea.83 He also finds shubha in certain types of                                                                   79 See.. Ibn Qudāma. that “you and your property belong to your father: anta wa-māluka li-abīk. Bashīr. and indeed seek to uncover some type of shubha. he also accorded it as wide a scope as they did. Coercion creates a ḥadd-averting shubha.

Thus. extending it to new kinds that prior Ḥanbalīs had not                                                                                                                                                                                                 there is no liability for acts committed or omitted out of mistake.g. etc. He uses the ḥudūd maxim to provide support for the view that there is no ḥadd liability with the mere smell of alcohol on one’s breath or for drunkenness.” Ibn Qudāma says that this rationale can be understood to suggest that there is perpetually doubt in women’s testimony. ibid.. because such claims of ignorance would be implausible. or coercion (khaṭaʾ.. Cf. ikrāh] shubha waʾl-ḥudūd tudraʾ biʾl-shubahāt). To remove ḥadd liability. For example. e. like the smell of alcohol. that the person thought the drink was non-alcoholic. See ibid. 346  85   . The interesting feature of Ibn Qudāma’s doubt jurisprudence is the wide scope that he accords shubha. ibid. they are to be rejected and cannot create ḥadd-averting shubha. or drank apple juice that gave off a smell similar to wine.. ghayr mūjib lah ʿalayhā.g. Ibn Qudāma notes that this is a typical area of ignorance amongst laypeople (mithl hādhā yujhal kathīran wa-yakhfā ʿalā ghayr ahl al-ʿilm). But he says at the same time that where male testimony conflicts with female testimony on ḥudūd matters..e. 12:275-77 (discussing apostasy rules in that regard). Qurʾān. e. from creating ḥadd liability.85 In these opinions. See ibid. 12:363-64. These possibilities constitute ḥadd-averting shubha for which there is no ḥadd liability: lam yajib al-ḥadd alladhī yudraʾ biʾl-shubahāt). the ignorance must be plausible.evidence. someone raised in a Muslim society cannot claim not to know that eating pork or drinking alcohol is illegal. he says that a judge is to reject women’s testimony in ḥudūd (here: zinā) proceedings because of the Qurʾānic verse requiring four (male) witnesses for zinā and the verse on female testimony in the commercial law context.. Mughnī. 2:272. The rule is based on ʿUmar’s practice in the former case as well as many possibilities that raise the specter of doubt as to whether the smell requires ḥadd liability. (noting that slave testimony also creates ḥadd-averting shubha: annah [ʿabd] mukhtalaf fī shahādatih fī sāʾir al-ḥuqūq fa-yakūn dhālika shubhatan tamnaʿ min qabūl shahādatih fī ʾl-ḥadd liʾannahu yandariʾ biʾl-shubahāt). notoriously equating one man to two women for witnessing contractual proceedings “so that if one forgets the other may reminder her. See Ibn Qudāma. See. exhibiting a clear bent toward reading in shubha and ḥadd avoidance. the women’s testimony prevails. sometimes calling into question testimony based on gender or personal status.. That is.e.. which can be a contextual determination. 345: Sex within marriages about which there is juristic consensus of invalidity constitutes zinā only if the parties involved know of the prohibition. he largely followed Khiraqī and prior Ḥanbalī positions but his contribution was to append the language of shubha to explain existing Ḥanbalī rulings.. 12:363-64. as ʿUmar ruled in the case of a woman who claimed not to know that it was illegal to remarry during her divorce waiting period. ignorance of the law constitutes a ḥadd-averting shubha. nisyān. because the women’s testimony as to virginity creates a ḥadd-averting shubha (fa-yakūn dhālika shubhatan fī darʾ al-ḥadd ʿanhum. for defamation) when four men testify that a woman has committed zinā but [an unspecified number of] women testify that the accused is a virgin. signaling that the ḥudūd maxim applies to such cases (li-anna hādhā [i. fa-inna ʾl-ḥadd lā yajib biʾl-shubahāt). there is no ḥadd liability for either an accused woman or for witnesses against her (i. forgetfulness. 12:343. and because of a prophetic precedent. istikrāh).84 at other times barring circumstantial evidence. wherein the Prophet avoided imposing the ḥadd on a raped woman (fa-daraʾa ʿanhā [imraʾa ustukrihat ʿalā ʿahd Rasūl Allāh] al-ḥadd). and so constitute the type of ḥadd-averting shubha when it comes to ḥudūd laws (fī shahādatihinna shubha li-taṭarruq al-ḍalāl ilayhinna … waʾl-ḥudūd tudraʾ biʾl-shubahāt). was forced. 84 83 Sometimes the rules seem to conflict. 12:501.

86 He explains that “it is the opinion of most jurists” that such disputes create shubha. but the thief denies having stolen or claims that he thought the stolen item was his or that the owner gifted it to him or the like. This is the opinion of most jurists. Ibid. waʾl-ḥudūd tudraʾ biʾl-shubahāt) and emphasizing that Ibn al-Mundhir noted agreement of all scholars on this point in the 3rd/9th century. shighār. applying it widely as a principle that guides rather than is dictated by individual case-by-case rulings.87 As for the maxim as a outcome-determining principle rather than a reflection of case by case rulings. 12:243-44 (listing temporary marriage (mutʿa). 87 Ibid. by which ḥudūd sanctions should be avoided by operation of the ḥudūd maxim. Ibn Qudāma uses the ḥudūd maxim to prefer the more lenient one. because difference as to the legality of marriage (al-ikhtilāf fī ibāḥat al-waṭʾ fīh shubha. he observes. Thus. he notes in ibid. 12:243-44. some                                                                   86 Ibid. there were three different Ḥanbalī positions on the matter. taḥlīl. when faced with several different opinions attributed to Ibn Ḥanbal. by contrast to male sodomy which is always ḥadd-liable because of the claimed agreement on its prohibition. that the legality of anal sex with women is disputed and that dispute itself creates a ḥadd averting shubha (shubha māniʿa min al-ḥadd). 347    . this usage shows up most starkly in the way Ibn Qudāma employed the maxim as a tie-breaker amongst different Ḥanbalī positions or to reach a decision in novel cases.” which Shāfiʿīs and Mālikīs had long recognized. there is no ḥadd liability for any zinā accusation arising from a marriage the validity of which is in dispute amongst the various schools.recognized at all (in contrast to the other Sunnī schools). The new area of shubha is “interpretive ambiguity. he says. Ibn Qudāma relates as a Ḥanbalī opinion the other school’s rules about interpretive shubha—that juristic dispute about a ruling itself creates ḥadd-averting ambiguity.. 12:350. That is.. and marrying a Zoroastrian). For example. Likewise. marriage without a guardian or witnesses.. and employing it even to trump existing rules within his school. marrying the sister of one’s divorced wife during the latter’s waiting period. if there is witness testimony to establish a case of theft. marrying a fifth wife during the waiting period of a divorced fourth.

according to Khiraqī. 12:472 (li-anna ʾl-ḥudūd tudraʾ biʾl-shubahāt). he adds a comment about notification and specialization of the law. But Ibn Qudāma says that confession to theft is taken at face value and the proper rule. (2) there is ḥadd liability because such liability does not go away with claims from the accused in the face of reliable external evidence to the contrary. 348    90 . 89 Ibid. though not for accusations proved with external evidence (li-anna al-ḥadd lā yajib maʿa ʾl-shubha waʾl-ishāra lā tantafī maʿahā ʾl-shubahāt)).89 Moreover. In some discussions. Ibn Qudāma entertains the notion that the ḥudūd maxim applies even when it diverges from Khiraqī’s rule. based on an application of the ḥudūd maxim to both. See also ibid. and surmising that the Ḥanbalī position—Khiraqī is silent on this issue—may well support ḥadd-aversion for such confessions as well. Abū Ḥanīfa says that there is no ḥadd liability in the new scenario by way of the ḥudūd maxim in that the competing pieces of evidence present shubha. 12:359 (noting the Ḥanafī rule that a mute person’s confession through signlanguage constitutes ḥadd-averting shubha as does witness testimony against him. most jurists agreed that there was no ḥadd liability. That this type of knowledge is specialized juristic procedure not common to thieves90 saves this type of jurisprudence from being considered contrary to the law. where the judge is to inquire about the act to perhaps reveal uncompleted elements or the lack of criminal intent in the face of seeming external evidence to the contrary. just as in cases of zinā..88 In doing so. Ibid. he comments that the maxim encourages judges to pursue paths against ḥadd liability as a technical legal matter. is that the slave is ḥadd                                                                  88 Ibid.. Ibn Qudāma prefers the first opinion because of the ḥudūd maxim.attributed to Ibn Ḥanbal himself: (1) there is no ḥadd liability. In such cases. as in the question of whether there is ḥadd liability for a slave who confesses to theft of an item found in his possession against the master’s contrary claim that the property stolen is in fact his own. and (3) there is ḥadd liability only if the accused has a reputation of lying and/or stealing.

By and large. if someone says zanaʾta.. where application of the ḥudūd maxim would present direct conflicts with Khiraqī’s opinion. there is no ḥadd-averting shubha despite the fact that the word uttered does not actually mean anything that constitutes a ḥadd offense!93 Ibn Qudāma also rejected applications of the maxim that go against religious or community values of sexual mores—a common area of ḥudūd-maxim rejection even in the schools that champion it most. which means “you committed fornication or adultery. and when the criminal intent is there. as Khiraqī (as Shāfiʿī) had held. though he does not explicitly adopt it himself. which literally means “you scaled [a mountain].92 Ibn Qudāma does not apply the maxim without limitation. 12:451 (wa-yuḥtamal an lā yajib al-qaṭʿ li-anna al-ḥadd yudraʾ biʾl-shubahāt wa-kawn al-māl maḥkūman bih li-sayyidih shubha).94 He rejected Abū Ḥanīfa’s infamous application of the maxim to avoid ḥudūd punishment for men who marry their sisters or other maḥrams with the view that the contract—even though defective—creates a ḥadd-averting shubha. See Chapter 4. which could indeed be read as shubha.” this is ḥadd-eligible defamation (qadhf) if meant in the second sense.eligible. the rule is based on intention.91 Here. Thus.” rather than zanayta. 349    . Ibn Qudāma acknowledges that there is room for applying the ḥudūd maxim because of the possibility that the item really does belong to the master. he attempts to remain within the settled opinion of the Ḥanbalī school and true to the doctrines put forward by Khiraqī on whose manual he is commenting. See ibid. Yet. he perhaps opens the way for later Ḥanbalīs to adopt this opinion on the basis of the ḥudūd maxim. For example. Ibn Qudāma did not apply it. Ibn                                                                   91 Ibid. in dicta. Here.. section 3. 92 93 94 Ibid. 12:396.

As noted above. The major exception to that was Ibn Taymiyya. Notably. pointing to Ibn al-Mundhir’s statement to that effect three centuries before his time.. as the overwhelming majority view) by the end of the 3rd/9th century. he does not regard it as a ḥadīth. not as a prophetic ḥadīth but as a guiding principle of criminal law. and was the key governing principle of that area of law—subject only to certain limitations. implicitly. 132 (wa-ajmaʿū ʿalā darʾ al-ḥadd biʾl-shubahāt). applied the maxim broadly. See Ibn al-Mundhir (d. if brother and sister.96 In this same vein.                                                                   95 See ibid. 12:341-42. are never able to enter into such a contract. particularly between parties. 319/930) made this statement in his work of some 765 matters on which jurists had reached consensus (defined. Ijmāʿ. 624/1226) accepted the maxim too. See also ibid. 350    . Zayd Āl Maḥmūd). who left his own imprint on the law. 95 Ibn Qudāma. It pervaded every section of his criminal law jurisprudence.. we see where he drew a bright line around religious values and Ḥanbalī school precedents that—despite the expanse of the ḥudūd maxim—he was not willing to infringe upon. defective contracts can only create shubha about legality if the contract has some valid. Regardless. like Ibn Qudāma. in sum. particularly when the perpetrator knows of the prohibition. 12:348 (rejecting another of Abū Ḥanīfa’s anomalous rulings—later billed as his expansive application of the ḥudūd maxim—that a man who is coerced into committing zinā is not ḥadd-eligible if the sulṭān does the coercing). 113 (listing a citation to the maxim along with commentary by the editor ʿAbd Allāh b. 96 Ibid. Ibn al-Mundhir (d. contemporary Ḥanbalī jurist Ibn Abī al-Qāsim (d. al-Ijmāʿ. And most subsequent jurists followed suit. the maxim was so pervasive and important that he regarded it as a matter of consensus. and an editor of one edition says that most of the items in his list has no basis (aṣl) in Qurʾān and Sunna or is of uncertain meaning (ghayr qāṭiʿ al-dalāla). but the contract here is per se void and in fact is never solemnized because the parties. 12:2444 (qāla Ibn al-Mundhir ajmaʿa kullu man naḥfuẓ ʿanh min ahl al-ʿilm anna ʾl-ḥudūd tudraʾ biʾlshubahāt).. basis in the first place. See Ibn al-Mundhir. even if erroneous. 319/930). In those limitations.Qudāma rejects contractual shubha for the same reason that others did: because that relationship results in sexual relations between two people about which there is consensus is not licit.

The texts include: (1) ḥadīth: man ubtilā bi-shayʾ min hādhihi ʾl-qādhūrāt fa-ʾlyastatir bi-satr Allāh.98 In the few instances where he does note that there is no ḥadd liability. 728/1328). By contrast. Ibid. fa-innahu man yubdi lanā ṣafḥatah nuqim ʿalayh Kitāb Allāh. despite the fact that it violates what Ibn Taymiyya takes to be the controlling ḥadīth on the matter: every intoxicant is wine. he advises that there is ḥadd liability in response to the various questions presented about which the petitioner is uncertain. 728/1328). Most other Ḥanbalīs. Rejected Ḥudūd Avoidance Ibn Taymiyya (d. wa man adhnaba ʿalāniyatan fa-ʾl-yatub ʿalāniyatan.. He aims to base his arguments on the texts of the Qurʾān and the ḥadīth. 351    99 . beginning at least as far as back as Isḥāq b. (3) Qurʾān: wa-ʾlladhīna idhā faʿalū fāḥishatan aw ẓalamū anfusahum dhakarū ʾllāh fa-ʾstaghfirū li-dhunūbihim. had appealed to the ḥudūd maxim to differing degrees.3.. he cites a text affirming that it does only if the perpetrator properly repents before the matter is brought before the courts. as usual. Ibrāhīm. 34:186-91 (explain away the historical circumstances surrounding the Ḥanafī belief that drinking nabīdh was not a ḥadd-eligible crime. which is prohibited by clear Qurʾānic texts). diverges from the trend. For instance. His was a reversion back to what he perceived to be the “original” and more constrained jurisprudence of ḥudūd laws that predated the adoption of the ḥudūd maxim as a valid legal principle. 34:179-80 (on zinā).g. Ibn Taymiyya neither accepted nor incorporated the maxim in any shape.99 In fact. (2) athar: man adhnaba sirran fa-ʾl-yatub sirran. and also offers historical explanations for why some schools diverge from the rule of mandatory ḥudūd liability and enforcement. he appeals to textual statements for those rulings. concerning the question of whether repentance removes ḥadd-liability. 34:177ff (section on ḥudūd laws). Majmūʿ al-fatāwā. 98 E. In his Fatāwā. without mentioning shubha.97 Usually. he never mentions the maxim.. Ibid. in                                                                   97 Ibn Taymiyya (d. he prefers that crimes be concealed in line with the ḥadīths advising discretion. ibid.

which I do not seek to cover here. based on the ḥadīths encouraging as much) (citing Qurʾān. it must be punished publicly. it was to be punished publicly. it had to do with his traditionist orientation to law and theology. Ibn Taymiyya was a traditionist who had a rather rigid theory of legal authority that emphasized exclusive divine judicial supremacy. All law was divine. he did not think that the obligation to enforce the ḥudūd laws went away with the first sentence. Appendix. The governor flogged him privately.. once the crime has been brought to the courts. 12 and sources cited therein. Clearly. he reports the case in which ʿAbd alRaḥmān.101 The story was a lesson for Ibn Taymiyya that concealed crimes permitted private repentance.100 But. Other studies have discussed at length his maverick theology and his jurisprudence. al-ʿĀṣ was both governor and presided over the court—as was typical. was dragged to court by his brother for drinking wine. At bottom. explicated through                                                                   100 Ibid. What is important for us to note is how Ibn Taymiyya’s traditionism shaped his ḥudūd jurisprudence and what seems to be his flat-out rejection of the ḥudūd maxim. where ʿAmr b. Accordingly. He sent for his son and flogged him publicly there.. 24:2 (wa-lā taʾkhudhkum bi-himā raʾfa)). son of the caliph ʿUmar b. 34:180 (noting that repentance and concealing the matter from the courts (satr) is preferable (afḍal) so long as it meets the requirements of “correct” repentance (tawba ṣaḥīḥa). Why? In large part. For the full story. for which he drew censure from ʿUmar when he heard about it back in Medina.which case private repentance is appropriate. 15:302-03 (similar). unique amongst the Ḥanbalīs. cf. and he takes this to be implied by the Qurʾānic rule outlawing zinā. he says. 3:135 and two ḥadīths). see Chapter 2. 101 Ibid. but once the matter was public. 14:287 (commenting on Qurʾān. 14:286-87. 352    . al-Khaṭṭāb. The two lived in Egypt at the time. Case no.

the maxim recedes into the background in Ḥanbalī jurisprudence. Muqniʿ. though perhaps this is to be expected in a mukhtaṣar. 3:1120-1. and he sought to reduce the scope of human discretion—even in interpreting those sources (whether for purposes of law or theology)—to nil. leading Ḥanbalīs follow this line of mixed opinions—typically rejecting the maxim as a prophetic ḥadīth. Some rejected the ḥudūd maxim. specifically – where the act does not meet the specific elements of the crime laid out in the text or where the evidence is insufficient to conclude that there is ḥadd liability.the Qurʾān and ḥadīths.102 C. After Ibn Qudāma and the generation of his immediate students. Mukhtaṣar. and others were reluctant adherents. Qāḍī Abū Yaʿlā (d. Qawāʿid. 24:4. such as one observes in other schools. Thus. but others accept it as a ḥadīth. The references to it are spotty. Regardless of whether the aim of Ḥanbalī works in 353    . 458/1066) ignores it in his work of law.g. rather than providing principles to guide future application. 803/1401-2). some wholly embraced it. Khiraqī (d. 190-97 (kitāb al-ḥudūd). Yet non-mukhtaṣar works available from the next century do not give the impression that the maxim is central to or accepted in Ḥanbalī jurisprudence. and noting that God addresses believers with “absolute” statements of law (khiṭāban muṭlaqan).. jurists do not seem to accept it as a ḥadīth though most do apply it broadly. 334/945) makes no mention of the maxim in the 4th/10th century. e. 34:175 (communal obligation: farḍ kifāya. after the 5th/11th century. 471/1078-9). See Khiraqī.).103 Over time. for that matter. Ibn al-Bannāʾ (d. 24:2 (penalty for zinā). it may be that these works should be taken to have followed the larger trend of contemporaneous jurists from other schools composing legal maxims literature amongst other schools of his time. 32 (penalty for qadhf). Ḥanbalī Doubt Jurisprudence The foregoing discussion exhibits the tremendous diversity in Ḥanbalī thought. There are some later jurists. but it encapsulates Ḥanbalī substantive doctrines of law. signaling absolute obligation) (citing the main ḥudūd verses: 5:38 (penalty for theft). there cannot be said be a consistent Ḥanbalī jurisprudence on the ḥudūd maxim or. however. Fatāwā. who did collect maxims. And for about two centuries. Ibn Rajab has his work on legal maxims. Both categories of impediments are guided by texts. but supporting its application in extremely limited circumstances: when there is some legal impediment. any broad acceptance of substantive legal maxims as guiding principles of law. like Ibn al-Laḥḥām (d.104 They took a case                                                                  102 Ibn Taymiyya. 104 103 Of course. etc.

354    . But. in all cases. Ibn alLaḥḥām does. Notably. They shifted from accepting the maxim to rejecting it. and its continuity was ensured so long as the traditionist theology gave primacy to tradition over rationalist principles (like the ḥudūd maxim if indeed it was not a ḥadīth). as Isḥāq showed in his disagreements with Ibn Ḥanbal (and as Ibn Taymiyya would later display). including Ibn Ḥanbal. Ibn Rajab does not include the ḥudūd maxim in his work. This two-edgedness that depended on a case-by-case analysis resulted in irresolution amongst Ḥanbalīs concerning what to do about the ḥudūd maxim. as discussed above. with no clear thread connecting them. Ibn Ḥanbal rejected the ḥudūd maxim as a ḥadīth but seemed to accept it as a precedent. if the teacher got it wrong in their view. The useful point to note here is that there was precedent for the wavering. they were not bound to follow any teacher. in attempts to subordinate human discretion to God’s. they saw Ibn Ḥanbal as the pioneer and took him as a starting point (looking to his opinions and basing themselves on his doctrine.                                                                                                                                                                                                 this field was also to collect prior precedent and guide future cases. as they did too with the law manual of Khiraqī. To be sure. which inspired so many commentaries). and even his opinions were reportedly double-minded when it came to application—whether there was ḥadd liability or not in certain approach unified less by doctrine than by appeal to traditionist-textualism. Ḥanbalī jurisprudence never settled on a single approach. The ḥadīth collections reported early cases of instances of ḥudūd aversion and ḥudūd imposition. the maxims literature is useful for revealing some Ḥanbalī values. the traditions trumped. But the traditions cut in two directions when it came to the ḥudūd maxim.

which can be grouped under a single heading concerned with methodological soundness: judicial subservience through a coherently textualist interpretive philosophy of law. 106 107 See Chapter 1. He took a stance of adopting the apparent meaning of the text. “the textualist. ʿAlī b. contradiction of the core Islamic law requirements to impose ḥudūd laws strictly out of deference to the Lawgiver. 42-44. The school’s infamous spokesman. Developing Ẓāhirī Textualism Ibn Ḥazm was following the doctrines of his forebears. Ibn Ḥazm. 154 (the quote above). “Muḥammad b. Muḥallā. 11:153 (masʾalat hal tudraʾ al-ḥudūd biʾl-shubahāt am lā). Ẓāhirī Shubha In Chapter 1. Before detailing Ibn Ḥazm’s developed arguments. and incoherence and arbitrariness in the application of the ḥudūd maxim for those who accept it. equity (istiḥsān). known as Dāwūd al-Ẓāhirī. and other forms of ijtihād used by others to extract rules not apparent in or easily inferred from the text. we expound on the second and third lines of attack. we saw that Ẓāhirīs were unequivocal in their rejection of the ḥudūd maxim.III.105 His arguments against the maxim fell into three lines of attack: inauthenticity of the ḥudūd maxim as a ḥadīth. esp.” But he rejected the use of analogy. harshly criticized jurists who adopted the ḥadīths that tended toward ḥudūd avoidance uncritically and applied them broadly. inference being “the fundamental principle on which [the Ẓāhirīs] built their doctrine. Dāwūd permitted inferences from textual indicators.” 99-160. 153-54 (on inference 355    . see the excerpts taken from Qāḍī Nuʿmān in Devin Stewart. 139-52 (against legal analogy and applying equitable principles [istiḥsān]).106 Chapter 1 dealt with the first question at length.107 and this manifested itself in strict textualist                                                                   105 See Ibn Ḥazm. A. we look at the early Ẓāhirīs. Khalaf. Dāwūd al-Ẓāhirī’s Manual of Jurisprudence. Here. and of any who would avoid ḥudūd sanctions as a matter of course. The eponym of his Ẓāhirī school was Dāwūd b.” who had studied under the traditionist Ibn Rāhawayh. For these views as recorded in his son’s manual of jurisprudence.

1984).e. including texts outlining criminal law rules and proceedings. for him. and should be punished uniformly regardless of the value of the stolen goods or the manner of the theft—issues that occupied other jurist so much as matters of shubha.109 He also reads the text establishing hand-amputation for “theft” without qualifications. 5:38)] waẓāhir ḥadīth Abī Hurayra—laʿana ʾllāhu ʾl-sāriq yasruq al-bayḍa fa-tuqṭaʿ yaduh wa-yasruq al-ḥabl fa-tuqṭaʿ yaduh). Imām Dāwūd al-Ẓāhirī wa-atharuh fī ʾl-fiqh al-Islāmī (Kuwait: Dār al-Arqam. For his life. 356  109 110   . theft is theft. 154-58 (against ijtihād). works. male and female. 4:25 ([F]a-idhā uḥṣinna fa-in atayna bi-fāḥishatin fa-ʿalayhinna niṣfu mā ʿalā ʾl-muḥṣanāti min alʿadhāb … . then she is to receive half of the punishment for the free.                                                                                                                                                                                                 (istidlāl)). ʿAlī).). are to get the full punishment of one hundred lashes due for fornication and are to receive the full sanction for defamation. waʾl-sāriqu waʾl-sāriqatu fa-ʾqṭaʿū aydiyahumā … (Qurʾān. see ʿĀrif Khalīl Muḥammad Abū ʿĪd. Risāla fī ʾl-madhhab al-Imām Dāwūd al-Ẓāhirī (collecting masāʾil—opinions on legal issues collected from various works and attributed to Dāwūd b. the strict-textualist reading of the Qurʾān without the ḥadīth seemed to be the impetus for his insistence that the Qurʾān can only be understood with reference to ḥadīth. As does Ibn Ḥazm. Note that this is in sharp contrast to Shāfiʿī’s view in the section on ḥudūd laws in his Umm. 25.. thus.. See Shaṭṭī.”108 Dāwūd reads this verse narrowly to apply only to married slavewomen. It is virtually axiomatic for most schools that slaves receive half of the punishment due free men and women for all crimes. Ibid. 25 (Dāwūd: li-ʿumūm al-āya [i. and doctrines. there is no minimum value of the stolen item to trigger the punishment because the text specifies none.interpretations of law. based on a broad reading of the directive to impose half of the punishment on married slavewomen who commit zinā: “If [the slavewoman] is married [or chaste] and commits a grave sin [adultery]. chaste women. Examples of his strict textualism in criminal law include cases involving defamation and slave punishment. 24.110 His attention to the apparent meaning of text or evidence manifests itself in the same approach to interpretation that we see Ibn Ḥazm later adopt. unmarried slaves. 108 Qurʾān.

the governing principle is not fairness or giving the opportunity for the accused to mount a defense. this is a precursor to Ibn Ḥazm’s approach when he recalled the Prophet’s practice of not asking for evidence of claims of marriage based on Arab culture and conventional norms for traveling and community life. As we will see below. To that end. The Prophet ruled that she had taken from him an amount to suffice her and                                                                   111 Ibid.111 In matters of criminal law. qiṣāṣ. he grades evidence with respect to the means that provide the most certain picture of what happened and thus the correct basis for a ruling on ḥudūd imposition: “The strongest evidence is the [judge’s] own knowledge.Dāwūd maintains that whenever the crime is established. 24. Rather. 26 (specifying that the rule applies to dimāʾ. the criminal trial is truth-seeking. then outside evidence (bayyina)”—typically witness testimony. much less to disingenuous claims of shubha. aimed to establish with certainty whether a crime has taken place and punishing the perpetrator accordingly. Muslim convert of one of his nemeses. Ibid. the ḥadd applies even if someone confesses to committing zinā but then retracts the confession. there was some question about whether a woman named Hind.114 During the Prophet’s time.113 Dāwūd roots all of this in a general sort of prophetic precedent that incorporates notions of culture and convention. he also holds that—in contrast to most Sunnī schools—a judge not only can. amwāl. had stolen money from her husband. and he need not rely on or even request evidence where it is unilluminating. but must. and ḥudūd). furūj. for him.112 Thus. 112 113 114 Ibid.. then confession.. judge according to his own private knowledge if it illuminates what actually happened. 357    .

115 and did not require her to produce evidence to support her claim.. as expressed colorfully in one passage of his son’s manual on jurisprudence. Wuṣūl. and Dāwūd holds that the judge or jurist must do no more and no less in deriving and applying legal rules.117 Further. see Maḥmūd. The term appears in Qurʾān. but which came to be understood as a person who dies without surviving children or parents—as understood here by Dāwūd. 358    .116 All of these rules are purportedly taken from the text. 1986). the Glorious and Almighty. “by that which you think for yourself” or “by that to which your choice and perception lead you”. Ibn Ḥazm. he added that “the verse which was revealed in the text should suffice you. 117 118 116 Ibn Dāwūd. the Prophet clearly required adherence to the text. 155. 4:105) God did not say. and consideration. For an analysis. (biʾl-maʿrūf). God—Blessed be His name!—said. God—May His praise be manifest!—said. despite God’s knowledge that (the Prophet) was the most sound of mankind in his perception and discernment. arbitrary personal opinion: anwāʿ al-raʾy al-bāṭil]. when describing the Prophet’s instructions to ʿUmar in dealing with a thorny inheritance issue: Or (do you think that). The same applies to all of the verses and ḥadīths that the Sunnī proponents of                                                                   115 Ibid. His school of thought vehemently opposed the use of judicial discretion. Ibn al-Qayyim. Ittijāhāt. had prohibited the Prophet himself—God bless him and grant him peace!—from adopting.”118 Ibn Dāwūd commented that. and the most excellent of them in his judgment. “Who is more a miscreant than he would follows his own desire.her son according to convention. Ibid. Iḥkām). Ibid. For more on the Ẓāhirī position against ijtihād biʾl-raʾy. The issue was kalāla. 4:12 and 176. see David Powers. “We have revealed the Book unto you with the truth so that you may judge between mankind by that which God shows you. instead. 156 (as translated and quoted by Stewart). with no guidance from God?” (Q 28:50). in so saying. [the Prophet] commanded [ʿUmar] to adopt his personal opinion. (Q. and resort to his own discernment and judgment? For. 387-89 (citing Ibn ʿAbd al-Barr. Jamīʿ bayān al-ʿilm wa-faḍlih. Iʿlām al-muwaqqiʿīn [section on false. Studies in Qurʾān and Ḥadīth: The Formation of the Islamic Law of Inheritance (Berkeley: University of California Press. Do not be a pleader for the treacherous”. refer to his own whim and choice. the meaning of which appears to have been uncertain early on according to those relating ḥadīths and commenting on the Qurʾān. if he intended this meaning—and God forbid that he should have intended this!—he would then have been commanding ʿUmar to adopt that which God.

Ibn Ḥazm elaborated on Dāwūd’s textualist approach. “all possible meanings are valid. provided they do not result in a logical absurdity. in Stewart.” Ibid.. A Textualist Theory of Ambiguity and the Principle of Precaution Two centuries later. ambiguity does exist. 157. 157-58. 121 Ibid. Jabal (reporting that the Prophet affirmed Muʿādh’s plan to exercise ijtihād when sent as a judge in Yemen). (giving a ruling) opposite that determined by the fancy of his companion. 122 See Ibn Ḥazm. Nubdha. The most common form of ambiguityproper is textual ambiguity. “Ibn Ḥazm’s Literalism. Judicial reasoning that goes beyond the text (for Ibn Dāwūd: “arbitrary personal opinion [raʾy] and ijtihād”120) risks arriving at divergent answers and missing the correct one. Most famous is the ḥadīth of Muʿādh b. but it is limited.”122 Someone could also be                                                                   119 Ibn Dāwūd.. defined as words that have “more than a single meaning. one must not restrict the word to one meaning. . Wuṣūl. 359    . despite their contradiction. were we to appeal to judges to decide matters according to “their own whims … [each would] judge by his fancy. there is one right answer. oft-emphasized textual principle of adherence to the text. consider this counterfactual example: “If two people were to perform ijtihād and arrive at different opinions. Ẓāhirīs rejects the ḥadīth with criticism as to both authenticity and content: the chain is unreliable and the content contrary to the overarching. the Glorious and Almighty. According to this doctrine.ijtihād trot out to justify their judgments on the basis of personal whims and preferences.” In such cases. 120 Ibid.119 In sum. 307-48. enjoined upon us. The truth is that which God. and it is located in the text. To prove it. For Ibn Ḥazm..121 B. the truth would lie in two contradictory answers at the same time. 155. He adds that.. in Sabra.” We must therefore appeal to the Qurʾān as a judge.” 7-40. the two rulings would be correct.

See Chapter 6.g.127 Accordingly. the ḥadīth requires the person to avoid the act altogether if they cannot resolve the ambiguity. 125 Or there could be doubt as to whether the evidence is sufficient to establish the crime. 126 This stance is similar to that of the Astarābādian Shīʿī textualists. not in so many words. of taking the safer way. lest they fall into the clearly prohibited. Muḥallā. Muḥallā. Ibn Ḥazm. they are to ask someone knowledgeable what the liquid is before drinking it. discussed below). 797ff. Iḥkām. see idem.uncertain about the law because they are simply ignorant of the appropriate ruling (jahl). and these sources specify that ḥudūd are obligatory whenever the evidence establishes a crime.. out of precaution.                                                                   123 See Ibn Ḥazm. they are required to ascertain the rule themselves or else ask a learned scholar for their opinion. In sum. Muḥallā. Ibn Ḥazm was most concerned with first authenticating and then applying what he deemed to be the dictates of the text. Ibn Ḥazm. He too is advising a principle of precaution (iḥtiyāṭ). Notably. 360  127   . as we will see in the next chapter. he says. 20.124 Or the person might doubt whether a reddish liquid in front of them is wine or not.” It is either that the crime is established. See. 12:186-88 (detailing the case of a man and woman arrested for zinā who claimed to be married. 8:252. so long as they are sure to investigate the bases of that scholar’s ruling to ensure that it follows the Qurʾān and Sunna rather than taqlīd of one of the Sunnī schools of law. For more of Ibn Ḥazm’s arguments against taqlīd. But he does not view this as “doubt” or “ambiguity. that there is a presumption of liability—in the face of potential illegality (ḥaẓr)—even though he insists that he adopts neither presumption of legality or illegality. e.125 In all these situations of doubt. 793ff. elaborating on the principles and presumptions of legality and innocence.126 The Qurʾān and Sunna are the only valid sources for law. 18. Nubdha.123 In such cases. in his ḥudūd jurisprudence. In that case. both of these types correspond to shubha ḥukmiyya discussed in other schools. 124 See idem. 12:60. Ibn Ḥazm is essentially saying. or it is not.

because he identified Māʿiz’s attempted escape as an avenue for repentance.129 except that Ibn Ḥazm added considerably more commentary as he sought to demonstrate the correctness of his views over those of other Sunnī schools of law. he                                                                   128 Ibid. as guideposts for the law contained in the Qurʾān and Sunna. 129 See below. and are not suggested by the text at all. these free readings come from mere speculation of the maxim-proponents. the Prophet was trying to find or introduce shubha.128 centered—unsurprisingly—on traditions. where the Prophet sentenced a man because of his confession to zinā only after turning him away four separate times. Chapter 6 (discussing approaches of Shīʿī traditionists from Ibn Bābawayh to Astarābādī). They also claim that the Prophet rebuked those who carried out the sentence in the end. Proponents of the ḥudūd maxim claim that.1. al-Muḥallā biʾl-āthār. 361    . the Case of Māʿiz. He cast this same light on the competing traditions about ḥudūd imposition and avoidance. does not shed light on whether and how the Prophet handled doubt. Ibn Ḥazm retorts. he typically began each subsection by discussing a ḥadīth or a controversial opinion. The overarching principle of criminal law outlined in the texts of the Qurʾān and Sunna. and then showing why his textualist view was superior than other Sunnī views based on arguments of the greater degree of authenticity of the ḥadīths on which he relied and the consistency of his interpretations in light of overarching text-based principles. But. Reading Traditions in Andalusia: Authentication Ibn Ḥazm’s legal treatise. which they deemed to be yet another type of shubha. For example. His was similar to the approach of traditionists in the Shīʿī context. laying out the various opinions where there were differences. by asking Māʿiz about alternative non-zinā acts that he might have engaged in. Organizing the work by fiqh topic.

each with different narrations and isnāds. in which case there was no ḥadd liability. Appendix. Ibid. Dīnār. he holds that the thrust of the Qurʾān and Sunnaic texts toward ḥudūd imposition bars the possibility of intercession once a crime has been brought before the court. calling most munqaṭiʿ—coming from ʿAṭāʾ.134 Instead. states that ḥudūd imposition is obligatory when someone has confessed to a crime or when it has otherwise been established with certainty. either the crime happened and was proved in a court. Recall that in that case. he points out. contradicts the bar on intercession to change the verdict after the fact. Ibn Ḥazm. Of the several versions recorded in ḥadīth collections. 131 132 133 134 Ibid..132 In his review of Ṣafwān’s Case. it does not come from records that can be authenticated. 12:54-57 (listing several versions. which is irrelevant to the question of ḥadd liability. 12:256.131 On the question of intercession or attempting to alter the bases for ḥadd liability after guilt has been established. in which case there was ḥadd liability. Moreover. 362    . and Ibn Shihāb [al-Zuhrī]—none of whom met Ṣafwān. 9. the report. Case no. none has an unbroken chain of reliable transmission connecting back to the supposed events in question. other                                                                   130 Ibn Ḥazm. or there was no proof for the alleged crime in court.133 Ibn Ḥazm rejects the idea that the Prophet canceled or considered canceling ḥadd liability after the crime was established. Muḥallā. 8:252. ʿIkrima. Muḥallā. who brought him to the Prophet for adjudication and then tried to intercede to avert the punishment after sentencing. a man stole a cloak from Ṣafwān.130 None of these texts make mention of shubha. and noting that the others include transmitters who are unreliable (ḍaʿīf) or unknown). See Chapter 2.maintained. he first attacks the authenticity of the report. ʿAmr b.

Ibid.ḥadīths make clear that no intercession can void ḥadd liability once a crime has been adjudicated in court. “without issuing a fatwā on the matter. for Ibn Ḥazm.137 But if an act is truly criminal and causes harm to an individual victim. then his advice is to bring the matter to court. Ibn Ḥazm examines one of the “overlook” sayings (taʿāfaw). 363    . (mubāḥ).136 Ibn Ḥazm’s preferred course.. there is other support in the sources for the view that ḥudūd punishments are only obligatory once they reach “the imām” (read: courts) and he establishes guilt.135 Its chain is unproblematic and indeed. 12:57 (citing the following version of the ḥadīth: taʿāfaw al-ḥudūd fī mā baynakum fa-mā balaghanī min ḥadd fa-qad wajaba). Ibn Ḥazm says.” is to overlook minor misdemeanors. and concludes that only the version with the ḥudūd exception is authentic. Ḥadīths to the contrary are inauthentic and should not be relied upon for the ḥudūd maxim proponents’ permissive take on ḥudūd avoidance. are clear that ḥudūd punishment is mandatory whenever a crime is committed and proved in court. 136 137 138 Ibid. either dropping a ḥadd claim that affects one personally or bringing it to the courts (the sulṭān) is of neutral value—neither prohibited or encouraged. 138 In sum. (an yaʿfā ʿanh). Ibid. Even the authentic ḥadīths on which ḥudūd maxim-proponents rely to shore up their positions contain no evidence that the                                                                   135 Ibid. the traditions regarding ḥudūd imposition and avoidance are questionable whenever they suggest avoiding ḥudūd enforcement when a matter has been brought before the courts. The texts. As there is no text or consensus to the contrary. In that vein.

364    . A series of ḥadīths deal with a related question—men who defame slavewomen who are mothers to their children (umm walad). Most jurists hold that it is not. his ḥudūd jurisprudence was bound by the same considerations that should guide any jurist: a mandatory requirement to impose the ḥadd punishment when the crime is proved in court. the                                                                   139 Ibid. no ḥadd liability applies. Ibid. 2. and he ruled that the one committing defamation was liable for the ḥadd sanction. he concluded. attempting to root his arguments in the text of the Qurʾān and traditions. otherwise.141 Hence. Some of their rules that he read as tending to privilege those of high social status and discriminate against those of low social status were to be rejected as contraventions of the texts. 12:232. 12:230-33. a special category of slavewoman. Interpretive Consistency: Social Status and Social Mores Ibn Ḥazm also addressed issues of social status and social mores that had crept into the law amongst ḥudūd maxim proponents. Ibn ʿUmar. 12:256.139 Rather. 140 141 Ibid. on the basis that a requisite element for the crime of defamation is that there be a violation against the honor of person deserving respect.. was once asked about a man who defamed another man’s umm walad.presence of shubha ever drove the Prophet’s decisions.140 Ibn Ḥazm takes the opposite view... as usual. the great jurist of Medina in the 1st/7th century. Consider the issue of whether defaming slavewomen is a criminal act subject to ḥudūd sanctions. These jurists take the view that a slave’s low station in life means that they have no personal honor (ḥurma) to be violated.

(ḥadīth: inna dimāʾakum wa-amwālakum wa-aʿrāḍakum wa-abshārakum [sic = ansābakum?] ʿalaykum ḥarām). both possess honor that is not to be violated. God specifically emphasizes in the Qurʾān that “O people! We have created you out of male and female .. and your lineage are sacred” to one another. 49:13 (yā ayyuhā ʾl-nāsu innā khalaqnākum min dhakarin wa-unthā … inna akramakum ʿinda ʾllāhi atqākum) (quoted in Ibn Ḥazm. without distinction by class or station. not lineage or stature.traditions explicitly place at least this type of slavewoman on par with any other woman. 12:232 (thumma tafāḍala ʾl-nās bi-akhlāqihim wa-adyānihim lā bi-aʿrāqihim wa-lā biabdānihim [sic = ansābihim?]). 12:232). its laws intent on replacing social hierarchy on the basis of bloodlines with honor on the basis of ethical and religious standing. and in fact.142 More broadly.145 Ibn Ḥazm concluded that it was ridiculous and contrary to the explicit text of the Qurʾān and the ḥadīth then to say that defamation against slaves is non-punishable on the false notion that slaves are not entitled to respect! Any believer deserves great respect. 365    . Ibn Ḥazm notes that the Prophet reiterated the emphasis on egalitarianism when he equated the free and the slaves in saying to his Muslim followers that “your lives. he explains. your property. there are some slaves who are “better in God’s eyes than a Qurashī                                                                   142 Ibid.. (ammā qawluhum ‘lā ḥurma liʾl-ʿabd wa-lā liʾl-ama’ fa-kalām sakhīf …).”143 From this.144 Finally. 144 145 Ibid. 143 Qurʾān.. surely. Ibn Ḥazm adds. one of Islam’s central values is social egalitarianism. the most honorable of you in God’s eyes is the most God-conscious. Ibn Ḥazm. Muḥallā. we know that “all people are born of [the same] man and a woman [sharing the same origins]. your honor. people then rise in preference on the basis of their morals and religiosity. Muḥallā.

relying on the ḥudūd maxim plus episodes reported in the traditions that depict ʿUmar avoiding the ḥadd in situations that could be understood as prostitution. and “all others (sāʾir al-nās)” that prostitution is ḥadd-incurring zinā). Muḥallā. he said “[that is] dowry. against proponents of the ḥudūd maxim whom he accused of using the maxim to support their own opinions rather than submitting to the dictates of the text. (waʾl-muʾmin lah ḥurma ʿaẓīma). 12:195 (telling two versions of the story—another about a woman in the marketplace). Ẓāhirīs. Shaybānī.” whom Sunnīs revere as uniquely qualified to hold the position of leadership over the community.caliph. Mālikīs. 147 148 149 Ibid. a woman renting herself out to a man for sex and/or the man demanding that of her. and those that follow their line of opinions. Recall the case wherein a woman who was starving approached a shepherd begging desperately for food. Shāfiʿīs... As explained above in Chapter 4. 12:195-98. She obliged. contract that provides the semblance of legality.147 Abū Ḥanīfa infamously held that ḥadd sanction was to be avoided for this practice.146 * * * Ibn Ḥazm’s attacks highlighted the importance of maintaining Islam’s social mores concerning the institution of marriage. One such instance arises in a dispute about handling prostitution. The shepherd conditioned the “gift” of three bushels of dates on her agreement to let him have sex with her. instead it is a valid. all others reject Abū Ḥanīfa’s view. and when the story reached ʿUmar.149                                                                   146 Ibid. See Ibn Ḥazm. dowry. Ibid. 12:195 (citing Abū Yūsuf.” and thereby averted the ḥadd punishment. dowry. that is. including his two students Abū Yūsuf and Shaybānī. Abū Thawr. 366    .148 Abū Ḥanīfa inferred from ʿUmar’s decision that prostitution does not warrant ḥadd liability. though defective.

”151 it is legalizing prohibited sex by prostitution. in his view. especially as Abū Ḥanīfa requires a minimum of ten silver coins (dirhams) as dowry for a valid marriage. their crime was more serious than zinā alone. Instead. and placing obstacles in the way of legal sex by marriage. In essence. Ibn Ḥazm says (not discussing the issue of coercion-as-excuse that usually arises here). and “this makes a mockery [of the law]. Ibid. 367    . to avoid ḥadd punishment for a paltry dowry but not allow people to get married except with a sizable one “is providing incentives to commit zinā.Ibn Ḥazm’s response is to point out the incoherence and immorality of Abū Ḥanīfa’s position that. not less so. This policy also encourages fornicators to have sex in public by simply paying a woman a silver coin (dirham). 12:198 (fa-hādhā huwa ʾl-istikhfāf ḥaqqan). the two parties added the sin                                                                   150 Ibn Ḥazm. If anything. Such people also adopt exactly the type of destructive taqlīd that he cautions against in general. (a-lā inna hādhā huwa ʾl-taṭrīq ilā ʾl-zinā). Ibn Ḥazm exclaims. is in stark contradiction to the community’s social mores: “This position is one of the most anomalous opinions” that Ibn Ḥazm claims ever to have come across. Ibn Ḥazm complains that as Abū Ḥanīfa is selecting and rejecting Companion opinions to suit his own whims. because it too often merely results in following the whims of individual judges rather than the dictates of the law through the text.152 Anyone who follows Abū Ḥanīfa in this erroneous opinion contradicts both the Qurʾān and the Sunna. 151 152 Ibid. both parties deserved the ḥadd for zinā. Muḥallā.”150 Moreover. Abū Ḥanīfa claims to follow ʿUmar in voiding ḥadd liability—here for a few handfuls of dates as dowry for a purported marriage—but does not permit a couple to enter into an actual marriage for that same dowry. with the addition of money into the equation.

is the only way to guard against judicial lawmaking based on whim that actually has the effect of contravening the values that the texts set forth. 12:186 (fa-daraʾa ʿanhā). Knowledge and Certainty: Burdens of Proof An example of Ibn Ḥazm’s jurisprudence on issues where others find shubha is as follows.. Their basis? A ḥadīth where ʿAlī was said to have adjudicated just such a case.153 Thus. the ḥudūd maxim plays no role. 154 155 For a full catalog of his rulings on common criminal law matters. When the couple claimed to have been married. And finally. they claim. Shubha plays little role. Ibn Ḥazm tries to make a case for going back to the original sense of Islam’s foundational texts. the report states that ʿAlī took their word and avoided imposing the ḥadd sanction. these jurists make a rational argument comparing this scenario to one in which a man has sex with a                                                                   153 Ibid.of concluding an illegitimate financial transaction in attempts to justify their crime of zinā. including the requirement to impose ḥudūd punishments whenever they are proved in the courts and to interpret traditions outlining criminal liability—once authenticated—accordingly. 368    . Ibid. hailing from the Prophet. (akl al-māl biʾl-bāṭil [as condemned by Qurʾān.154 Where a man and a woman are found having sex and they claim to be married. on the substance of the law. should they be punished? Ḥanafī and Shāfiʿī jurists would apply the ḥudūd maxim to avoid punishment. In each case.155 Jurists in favor of avoiding the ḥadd in such cases also cite the ḥadīth version of the ḥudūd maxim for support. including social status and social mores concerning sexual ethics. 3. see ibid. 2:188: wa-lā taʾkulū amwālakum baynakum biʾl-bāṭil …]). The deciding factors are the overriding principles of law that require strict subservience to divine legislative supremacy. That.. for him. 12:164-218 (kitāb al-ḥudūd).

157 Second.” and that it is impermissible to avoid ḥudūd sanctions or enforce them on the basis of claims that shubha. the decision similarly would be made on the basis of certain knowledge rather than speculation (ẓann). In that case. In particular. if similar evidence was presented to prove the claims that a marriage had taken place. Finally. jurists agree that no ḥadd punishment is due. it relies on the ḥudūd maxim. exists. By analogy to the claims of ownership as the legal basis that removes a suspect from ḥadd liability. so the decision to accept the claim was on the bases of firm evidence and certain knowledge.. 157 Ibid. Other jurists dispute that view. the case is factually distinct from the one involving the slavewoman. In this scenario. the cases cited as precedent (where no one disputed the judgment) are decisions of Companions. but claims to have bought her and the actual owner affirms it. First. rather than certain evidence.156 Ibn Ḥazm says that these types of stark difference amongst jurists require investigation. all parties affirmed that the sale took place. 369    . which Ibn Ḥazm “has already demonstrated was apocryphal. for this group of jurists. 12:186-87. And that would be sufficient cause for any jurist to                                                                   156 See ibid.slavewoman known to belong to someone else. he argues that the opinion favoring ḥudūd avoidance should be readily dismissed for several reasons. He rejects the blanket opinions either for or against ḥadd imposition in favor of a third case-by-case approach. as does the slavewoman. which do not create binding precedent as they would had the same cases occurred in the presence of the Prophet. no ḥadd punishment should apply when suspects claims to be married either. In that case.

further investigation beyond the mere claim is perhaps warranted. Namely. And                                                                   158 Ibid. (gharībayn). 370    .158 In addition. This consensus is so universal. If found together. people continuously travel with their families. 12:188 (jamīʿ ahl al-Islam wa-jamīʿ ahl al-arḍ). that it should be regarded as an authoritative and binding text (naṣṣ). and no one demanded that they produce evidence to prove it. particularly if the two are foreigners or unknown to a particular community.. For instance. This should be nothing surprising. Ibn Ḥazm argues.decide that there is no ḥadd liability. 159 160 Ibid. as only “truth and certainty” provide valid bases for legal decisions. their claim should be accepted. including free as well as slave-women and men. if the couple is known in the community not to be married. their claims that the women were wives or slavewomen belong to the accompanying man was accepted. during the time of the Prophet.160 Only in certain exceptional cases should a couple in this type of scenario be asked to produce evidence. His rule then is that whenever a couple is found together claiming to be married. 12:187. and no one asks them for evidence to prove the validity of their associations. Ibn Ḥazm noted that the opinions toward blanket rules of either ḥudūd imposition or avoidance fail to take into account the cultural context of the Arabs or the historical circumstances surrounding legal decisions during the early period. people used to emigrate to Medina in large waves from the farthest reaches of Yemen and other Arab lands together with their families and households.. Ibid. All Muslims and indeed all people159 from the Prophet’s time until the present have agreed that this is quite a normal state of affairs.

another party produces solid evidence that the couple claiming to be married is lying. The first is that life is to be preserved. however. by avoiding making decisions—especially on these serious affairs involving criminal sanctions—except on the basis of certainty.167 those ignorant about the whether                                                                   161 Ibid. Interestingly. because their testimony converges on the point of the validity of sexual relations (ṣiḥḥat al-firāsh). no ḥadd applies. in part. 12:187-88. if a woman is known to be unmarried.. Ibn Ḥazm. 163 164 165 166 167 Ibid.161 such that she will not be held ḥadd-eligible. he also holds that in cases of conflict of evidence. as in the scenario where all parties affirmed the sale of the slavewoman. If doubts remain.. just as questions of law.162 Likewise. whether by marriage or the master-slave relationship. and lineage are sacred. property. 162 Ibid.even then.166 Just as those who are ignorant about the law should avoid acts that cause them to question whether they are acting lawfully. Muḥallā. if a judge is certain that the couple is lying about their claims. honor. where the man claims that they are married and the woman claims that she is his slavewoman. 163 For Ibn Ḥazm. 12:60. Ibid. a judge should require the couple to produce evidence of their claim. Ibid. no ḥadd is due. (aṣl: dimāʾuhum wa-abshāruhum [sic] ʿalā ʾl-taḥrīm). Or if all parties affirm the marital relationship. with no room for ḥadd avoidance. 371    . any evidentiary decision or question of fact then should be resolved on the basis of certain knowledge.164 based on the ḥadīth cited above stating that “your blood. see above. her claim is accepted if it is plausible. there are two textual presumptions that should apply here. Ibid. ḥadd liability will apply mandatorily. that is. note 145. For the Arabic. If. and accompanying text. 12:188 (bi-yaqīn lā shakka fīh).”165 The second is a jurisprudential principle that runs throughout Ibn Ḥazm’s law: that people should constantly be vigilant against making permissible what God has prohibited.. 12:187 (in amkana).

But “if there is a doubt as to whether the ḥadd is due or not. Ibid. if the matter is clear. he points to a broad historical precedent to argue that the Prophet affirmed this practice—by not asking people to produce evidence of a valid relationship when they travel together.169 which no one has the license to avoid.certain acts will incur ḥadd liability should abstain from any such acts. Thus.170 C. Ẓāhirī Doubt Jurisprudence In sum. his textualist orientation translates into precaution by avoiding ambiguity and ḥudūd sanctions in cases of doubt.. then it is best not to impose it.168 But. 12:60-61 (wa-man jahila a-wajaba ʾl-ḥadd am lam yajib fa-farḍuh an lā yuqīmuh li-anna al-aʿrāḍ waʾldimāʾ ḥarām). for Ibn Ḥazm.”171 Here. at least in these cases where he can point to historical and cultural practices that he maintains the Prophet tacitly affirmed. 12:61 (farḍ). as always. he has combined it with a textual rule that borders on the acceptance of a general presumption of permissibility. but unlike them. then the ḥadd is mandatory and an obligation set by God. in ḥudūd laws “if the matter is clear. unlike Shīʿī traditionists. Ibid.” ḥudūd imposition is mandatory and one must never avoid it.. But ever concerned with textual—and thus certain—bases for his conclusions. Ibn Ḥazm has placed the burden of proof on those who would challenge the apparent facts of the case. he has adopted a principle of precaution. This stance rested on the overarching principle of precaution in ḥudūd and matters of life and death. 169 170 171 Ibid. 372    . Like Shīʿī traditionists.                                                                   168 Ibid.

IV. Their rejection of the maxim thus had less to do with the practice than with what they saw as its atextualist basis and the fluid approach to law and legal interpretation that its formulation seemed to suggest. Ḥanbalīs spanned the spectrum from almost wholesale acceptance to rejection of the maxim. the textualists maintained. not on maxims but on the texts of tradition. then to suggest that judges should “avoid ḥudūd sanctions in cases of doubt” was to put much too much discretion in the hands of judges and jurists who were charged with faithfully implementing the law on the basis of traditions. as did the Ẓāhirī Ibn Ḥazm in different terms. and other defects to f