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


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

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

“however smoothly they work over the great mass of ordinary cases..L. 153. Laws are “open-textured. 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. standards. prove indeterminate. Especially in common law-like systems such as the American and Islamic legal traditions. IL: Northwestern University Press. in law. it is much too often elusive. Hart used this term to refer to the indeterminacies that will inevitably arise in general rules. Frederick Schauer. jurists in many legal traditions appeal to canons of construction.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. The Concept of Law. 2nd ed.” in Sanford Levinson and Steven Mailloux. 1988): 133-154. maxims play a prominent role in the judicial interpretive process. there can be great benefit in doubt. “An Essay on Constitutional Language. also known as legal maxims.INTRODUCTION   As comforting as certainty may be. As one philosopher of law remarked.” H. (Oxford: Oxford University Press.” making doubt inevitable. at some point where their application is in question. Hart. eds. ambiguity. Interpretive Law and Literature: A Hermeneutic Reader (Evanston. and principles. 1    2 . published 1961].”2 Accordingly. which. will. It is about uncertainty. and doubt in Islamic law. function.A.L. 1994) [orig.1 Arguably. In attempts to resolve the doubts that arise from the indeterminacies of text. or at least in investigating its causes and evaluating its effects. 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). this study is not about certainty. Legal maxims are succinctly stated principles that jurists use as key interpretive tools when                                                                   1 H.

g. Moreover. Because criminal law straddles the political-legislative and juridical-interpretive divides in Islamic law..” My detailed study of this single maxim is illustrative of the genre of legal maxims. maxims allow jurists tremendous leeway in formulating new precedents and thereby constructing and subtly shaping the law. maxims express interpretive processes and juristic values of particular legal schools and—where shared—of dominant views in Islamic law. 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. which were distilled and collected in multiple treatises beginning in the 7th/13th centuries and continuing through the 10th/16th centuries. and which garnered resurgent interest in 2    . This is particularly true in criminal law. 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. penal law lies at the intersection of politics and law. family law or ritual law.applying texts and settled precedents to new cases. unlike other areas of Islamic law (e. Accordingly. 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 statements of existing rules drawn from prior precedents. As gap-filling measures to address situations for which there is no plain statement of law. because this area of law reflects value-laden rules of societal (or divine) condemnation for certain behaviors. it provides a fruitful avenue for examining the operation of and rationales behind legal maxims in the two spheres. over which Muslim jurists assert near exclusive interpretive authority).

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

“Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed. “Textualism and the Equity of the Statute. he mapped out a damning thrust-and-parry chart of contradictory maxims commonly used in the courts. Appendix. arising in both the American and Islamic legal contexts. “Pragmatics and the Maxims of Interpretation. 5 6 Llewellyn. 401-06. Rules or Canons.5 The idea was that judges used maxims selectively to reach predetermined results.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. And to prove it. 4    7 . 1180. “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.g. A maxim of central concern (and. Geoffrey P. Manning. Antonin Scalia. there is a counter-maxim supporting the opposite view. Miller. e. John F. it turns out. and substantive maxims were an easy way to circumvent it.” Wisconsin Law Review (1990): 1179. Llewellyn.attacked legal maxims for being wholly indeterminate. although they made exceptions for the more textbased “interpretive maxims” commonly called canons of construction. See. 1997).. 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. For them. The “rule of lenity” in American law stipulates that criminal                                                                   4 Karl N.”6 Textualists chimed in too.4 He complained that for every maxim supporting one interpretation.” Columbia Law Review 101 (2001): 1-127.” Vanderbilt Law Review 3 (1950): 395-406. opprobrium) is the principle of criminal law that stands at the center of this study. A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press.

Wiltberger. is a convenient tool for judges to flout express legislative intent to punish crime.11 The ḥudūd maxim too has garnered sharp opposition in the Islamic legal context. “The Sentencing Rule of Lenity. Philip M. Ibid.S.” Fordham Law Review 72 (2004): 885. 25-26 (noting that judges’ use of maxims is extremely selective and selfserving. Spector..”10 In practice. surprisingly. 35. “The Rule of Lenity as a Rule of Structure.” 390-96..” University of Toledo Law Review 33 (2002). In the American context.”). Zachary Price. 26-27. 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. “The Mercy of Scalia: Statutory Construction and the Rule of Lenity. 11 See Sarah Newland. only because of its long-standing presence in the law. so I suppose that it is validated by sheer antiquity. Interpretation. akin to a person looking out over a crowd to pick out their friends). the lenity rule persists—with Justice Scalia. 345 (arguing for abolition altogether). the vocal 5th/11th-century Sunnī Andalusian jurist Ibn Ḥazm                                                                   8 See. 512 (arguing for modification through limitation). Kahan. its inconsistent application reflects the role of judges’ personal preferences rather than the rule of law. United States v. 9 See Scalia. 511. 43 (1820) (“The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. 10 5    . 18 U.sanctions are to be avoided in cases of doubt or ambiguity. e. 887 (arguing that lenity should be rehabilitated). 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. Justice Antonin Scalia. Like Llewellyn.g. Kahan.9 but reluctantly accept the lenity rule. Dan M.” Supreme Court Review (1994). “Lenity and Federal Common Law Crimes. The comparable Islamic law “ḥudūd maxim” also directs judges to avoid imposing fixed criminal punishments in cases of doubt or ambiguity. lenity is “as old as the common law itself. cf.” Harvard Civil Rights-Civil Liberties Law Review 29 (1994). For the Supreme Court’s self-identified arch-textualist. as its greatest proponent. “Lenity and Federal Common Law Crimes. The lenity rule.8 Textualists level similar attacks against substantive maxims. 197. they contend.

14 Moreover. ʿAbd al-Ghaffār Sulaymān al-Bandārī (Beirut: Dār al-Kutub al-ʿIlmiyya. al-Iḥkām fī uṣūl al-aḥkām (Egypt: Dār al-Kutub al-ʿIlmiyya. he complained that the ḥudūd maxim is particularly egregious. Part II: 307-48 (cataloging Ibn Ḥazm’s use of inference and other text-based interpretive strategies in his interpretive methodology). al-Muḥallā biʾl-āthār. 14 15 See idem.. the intent of the Lawgiver that those laws not be transgressed.. 9:428. 13 See Ibn Ḥazm (d. In fact. 1988). II:307. took a similar position. trans. so named because its jurists insisted on relying on the apparent meaning of foundational texts. 11:153. For him. Ibn Ḥazm was a textualist who favored interpretive canons. see also Sabra. because it contravenes the clear sense of ḥudūd laws as mandatory fixed criminal sanctions for serious crimes and. the 11th/17th-century Shīʿī jurist of the textualist-traditionist school of Shīʿī law. he said. “Ibn Ḥazm’s Literalism: A Critique of Islamic Legal Theory” (in two parts). 6    . including the very basic Islamic legal principle of divine legislative supremacy requiring that the law be obeyed. 1971). Like Scalia. trans. and it easily resulted in disparate application of the law. Wolfgang Behn (Leiden: Brill. runs roughshod over the foundational sources of law. ed. substantive                                                                   12 See Adam Sabra. Part I: 7-40. it—like all substantive maxims—was a useful tool for anyone wishing to disregard the law. Ibn Ḥazm was the last well-known leader of the Ẓāhirī school (lit. and Qurʾān. he made no exceptions for the ḥudūd maxim. consequently. which jurists could use to flout the law. juristic applications of the maxim were inconsistent and incoherent. 7:454-55.13 Antiquity was no defense.: apparent or prima facie). see also ibid. 2:229. On the history of the Ẓāhirī school and its methodology. the standard work is Ignaz Goldziher. 1968).15 Muḥammad Amīn al-Astarābādī. “Ibn Ḥazm’s Literalism. 9:428 (citing a Prophetic ḥadīth outlining the sacredness of core Islamic values like the preservation of life and honor. idem. Muḥallā. Using a maxim of dubious provenance to avoid observing the clear obligation to punish criminal law violations.had posited that for every maxim there is a counter maxim. Muḥallā. al-Qanṭara: Revista de Estudio Árabes 28 (2007).12 but unlike Scalia. See Ibn Ḥazm. 456/1064). 9:428 (adding that there is no difference between ḥudūd laws and any other legal arena). announcing that God’s laws (ḥudūd) are not to be transgressed). The Ẓāhirīs: Their Doctrine and Their History: A Contribution to the History of Islamic Theology.” I:7-11 & notes 2-14 (and sources cited therein). Die Ẓāhiriten (1884).

no. When placed side-by-side. idem. Wasāʾil al-Shīʿa. 1383-1389/[1963 or 1964–1969]). were a means to subordinate revelation to reason rather than vice-versa. if the ḥudūd maxim was valid. but because it appeared in the texts of the law’s canonical sources. any maxim had to have a textual basis. 17 See al-Ḥurr al-ʿĀmilī. other constraining interpretive principles took priority over the malleable maxim and severely curtailed its scope.p. Shīʿī textualists found that antiquity justified the maxim (it seems to have always been there as a canonical text). ed.: Dār al-Nashr li-Ahl al-Bayt. ʿAbd al-Raḥīm al-Rabbānī al-Shīrāzī (Tehran: al-Maktaba al-Islāmiyya. for Astarābādī. critics find common cause in their attacks on maxims. the legal process always involves a measure of interpretation. but unlike Scalia. barring jurists from exercising discretion and thereby reading their own preferences into the law. It is of course a legal construct to speak of such deference given text’s indeterminacy. [198-]). cf. 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. To be valid and to place revelation in its proper place as not only the primary. Like Scalia. but the sole. whether involving “the law” as embodied                                                                   16 Muḥammad Amīn al-Astarābādī. 34.16 It would be fair to conclude that he would have been held the position that. especially of the substantive kind. it was so not out of reason’s dictates. they held that its textual basis did not translate into room for wide application of the maxim. al-Fawāʾid al-Madaniyya (n. 7    . source of law. al-Fuṣūl al-muhimma. Both camps are intent on curtailing judicial discretion in deference to legislative supremacy presented in the text.17 Moreover.maxims. 28:48. (Qum: Maktabat Baṣīratī. But on both sides. 388 (referencing the ḥudūd maxim as a prophetic ḥadīth). [198-?].179 (quoting the ḥudūd maxim as a ḥadīth from Ibn Bābawayh’s Faqīh). 3rd ed. 106. which he called rational presumptions (uṣūl).

We are interested not only in establishing that there is a conflict over maxims. but also in understanding why. History has demonstrated that simply identifying opposing legal maxims in either realm will not explain the enduring judicial usage of them. Focusing on the juristic role in these affairs. nor will it reveal the true locus of the conflict between those who doggedly invoke maxims and those who vigilantly attack them. Rather.” Kim Lane Scheppele.19 Despite the attacks. Cf. so the ḥudūd maxim persists in Islamic law. … [For] as long as judges … have the flexibility to characterize the facts of cases. we ask what rationales and presuppositions jurists draw on. 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. just as lenity carries on in American law. Legal rules and legal facts are mutually constituting. (“[L]egal authority is not simply internal to legal culture. a theory of interpretation of legal texts alone will fail to provide determinate answers. The task for scholars seeking to understand the phenomenon and the persistence remains in both realms. ibid.”). 60.” Representations 30 (1990): 42-77.18 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. 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. “Facing Facts in Legal Interpretation. 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. 8    19 . to justify the positions they have assumed vis-à-vis legal maxims. but … pertains to the relationship between legal culture and the culture of the world into which it is an intervention. Instead.                                                                   18 That is to say that “law does not live by doctrine alone. and why.

II. 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. 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.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. As I seek to demonstrate here. 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. by and large had settled on shared theological principles that undergirded their orientations to law. is the first                                                                   20 There is much discussion and debate about the appropriate periodization of various phases in Islamic legal history. Qāḍī Ḥusayn al-Marwazī (d. Rather. 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. 462/1069). 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. 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    . the conflict often has little to do with anything inherently contradictory in the maxims themselves.20 A Shāfiʿī judge in Baghdad. Eventually. with ḥadīth as central). and had begun to develop and articulate the theories and contours of the schools to which they belonged. Appealing to certain institutional arguments with reliance on particular theological presuppositions. These phenomena are illustrated in this dissertation in recounting juristic discussions about the meaning and contours of doubt (shubha). 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.

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

pl. The judge need not deliberate 11    . uṣūl). pl. and principles more closely related to the doctrinal substance of the law (fiqh).subsidiary. ḍawābiṭ. Legal scholars categorize these maxims in various ways. plus a third that folded in some of the interpretive rules from jurisprudentialinterpretive canons. 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. 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. which are the primary subject of this study. 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. 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. and in early Islamic law aṣl. 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). which discuss how laws relate to the sources and govern textual and linguistic principles of interpretation. For example. more particular substantive legal maxims (qawāʿid fiqhiyya [juzʾiyya]). 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. Jurists typically refer to the former as presumptions—expressions of settled doctrines relating to particular areas of law (ḍābiṭ.

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. The legal maxims with which we are concerned mostly fall on the right side of the divide. 12    . ḍawābiṭ.23 In that sense. the rule applies only to family law (albeit with implications for criminal. and other areas of law). 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. presumptions: qawāʿid fiqhiyya..about specific aspects of the law to apply the rule. and this is typical of the narrow scope of these presumptions. reference canons] e. equitable principles canons] such as istiḥsān & istiṣlāḥ] [Shīʿī law: uṣūl ʿamaliyya] Substantive legal maxims: qawāʿid fiqhiyya Interpretation/derivation Application specific maxims. In addition. The category—not recognized as an independent category per se by medieval jurists— can be called “interpretive-substantive maxims. such presumptions are self-executing. It requires jurist to use interpretive principles in deliberating about principles of substantive law like the rules of narrow construction. 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. inheritance. qawāʿid. though interpretive principles from the left side sometimes arise on the right. whenever he can ascertain or suppose the “fact” of a marital relationship. The table below summarizes the major types of maxims that arise in Islamic law. 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. as discussed below. juzʾiyya. he designates paternity on its basis.g.” of which the ḥudūd maxim is a good example.

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

14    .others that involved issues of criminal culpability. In a legal system that posited a theory of divine legislative supremacy. (St. Taken on the whole. and reference canons.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. it counts as a legal maxim that has both substantive and procedural aspects (qawāʿid fiqhiyya and qawāʿid qaḍāʾiyya). But the texts left tremendous leeway for the exercise of discretion. 818-19. see William N. the maxim is about interpretation. theological orientations informed juristic determinations about the scope of authority and human discretion to operate in the legal-interpretive realm. 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. Jurisprudentially. as matters of interpretation in Islamic law implicitly entail or rest on certain theological suppositions. It often invokes the use of maxims from the realm of interpretive canons (qawāʿid uṣūliyya) too. and Elizabeth Garrett.. As such. 2001). That is. Philip Frickey. MN: West. 3rd ed. Eskridge Jr. Theology was worldview. jurists used the ḥudūd maxim to determine how to resolve doubt. textual. Legislation: Statutes and the Creation of Public Policy. Paul. 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. 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. The maxim brings into play matters of theology too. it drove interpretive philosophies of law.

But the maxim goes beyond strictly ḥudūd contexts to other areas of criminal law. it is to assert that we are able to better understand how legal disputes crystallized by examining the maxim. because it was a means of moving from theory to practice. which tend to repeat the name of the maxim. Rather. The original sense of ḥudūd did not refer to fixed criminal laws. jurists applied the                                                                   26 There is no specific designation for the maxim in medieval works. what was the scope of human discretion to interpret the law? Institutionally. As for substantive law (fiqh).26 As we will see. the ḥudūd maxim came to apply expansively to doubts concerning all types of crimes and punishments. 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. who had the legitimacy and competence to do so? Theologically. (There were certainly other factors at play.discretion on principled and predictable bases. This was the task to which jurists employed legal maxims. Jurisprudentially. Those discussions had external purposes and revealed concerns relating to political authorities. The main questions at stake were the following. though by the maxim emerged 15    .) 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. and this discussion is not to claim that the ḥudūd maxim determined it all. who also claimed authority to regulate violence. Their usage of these maxims was extremely important to the whole edifice of Islamic law. 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 rather in the circumstances and doctrines leading up to and informing or defining that rise. and debates concerning legal maxims in late antique and medieval Islamic law and society. 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. the ḥudūd maxim takes on shades of all categories of maxims: interpretive. as such.                                                                                                                                                                                                 in the first few decades of Islam’s rule. In other words. see the “Note on Islamic Criminal Law” below. As the maxim helped define the legal-doctrinal contours of the substantive law. it also molded Islamic criminal procedure. In sum. and procedural.maxim to doubts involving retaliation for murder and personal injury (qiṣāṣ) and discretionary punishments (taʿzīr) as well. 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). The interest here is not in the intellectual-historical question of how and why maxims arose in this later period.* Finally.” I do not use this phrase because it is not descriptive of the ḥudūd context to which the maxim applies. and the authority to accommodate or regulate either. substantive. it no doubt did. crime. it relates to institutional relations between jurists and state. The common name used in modern Islamic legal maxims literature is the “avoidance canon (qāʿidat al-darʾ). in the courtroom. this dissertation offers a “pre-history” of the field. Yet. * For a brief survey of Islamic criminal law. It involves questions of theology. the maxim showed up just as prominently. and it speaks to issues of law and society that involve questions of status. acts of disputed ḥadd status. and discretionary punishments. Function: Concepts of Doubt and Assertions of Authority As for the specific areas of investigation. function. 16    . the ḥudūd maxim was not restricted to what later became the short list of ḥudūd crimes. III. the nature and content of those laws had not settled. and it extended to laws of retaliation.

We will see. and the more strict camps firmly opposed it. law. 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.The first two chapters cover themes in ḥadīth. jurists developed a robust theory of ambiguity. stemming from Prophetic times through the third century of Islamic legal history. Philosophies 17    . and society from the earliest period. The next two chapters examine the complex and varied meaning that jurists built up around doubt as a legal doctrine. 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. precedent-setting force. Strictly textualist and traditionalist Sunnīs (Ḥanbalīs and Ẓāhirīs) together with their Shīʿī counterparts (Akhbārīs) were not at all enthusiastic about the ḥudūd maxim. These studies aim to develop a panoramic view of the ḥudūd maxim—its development. The final two chapters will examine shades of opposition to the maxim. that with the professionalization of the legal schools in the 4th/10th and 5th/11th centuries. 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. 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. however. and socio-political logic.

“Legal Maxims. To date. 18    . The approach is considerably interdisciplinary. “The Codification of Islamic Juridical Principles. * * * With these considerations in mind. 1 (2006): 77-101. “Ḳawāʿid Fiḳhiyya. For a translation of a Persian article providing an overview of legal maxims in Shīʿī law. 1 (1995): 89-107. 2008). there has been an explosion of works on legal maxims in recent decades.” in Sharīʿah Law: An Introduction (Oxford: Oneworld. art. 2008). it diverges sharply from many studies in Islamic law and the few studies of legal maxims.” in Bernard Weiss.” Arab Law Quarterly 20. idem. this dissertation makes interventions in fields of Islamic legal history and comparative law through insights offered in a broadly comparative framework. Accordingly. but they largely take a traditional approach. they drove opposition to the ḥudūd maxim and. and Islamic law. see also Wolfhart Heinrichs. Studies in Islamic Legal Theory (Leiden: Brill. history. idem. any other substantive legal maxim—causing their rationalist counterparts to redouble efforts to defend it. “Legal Maxims and Other Genres of Literature in Islamic Jurisprudence.27 In Arabic and other Near Eastern languages. by extension. applying insights from law and studies of legal maxims and jurisprudence in American law to themes and methodologies of area studies.that sought to restrict judicial discretion through reliance on text conceived of an extremely narrow scope for reason vis-à-vis revelation. “Qawāʿid as a Genre of Legal Literature. ed. as demonstrated in an appendix. Contemporary English-language scholarship on Islamic legal maxims is extremely sparse. 2002) (and sources listed therein). 141-61. see Muṣṭafā Muḥaqqiq Dāmād. As such. 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.” EI2-Supplement (Online Edition: Brill.. Like the classical treatises of legal maxims. seeing the exercise of reason as a threat to the strong principles of divine legislative supremacy. many of these collections identify core maxims. discuss legal bases for                                                                   27 See Mohammad Hashim Kamali.” Ḥikmat 1.

and Ismāʿīlī traditions). “Dū qāʿida-i fiqhī: qāʿida-i ‘tudraʾ al-ḥudūd biʾl-shubahāt. with some reference to minority schools where significant (including the Ẓāhirī. Muḥammad Muḥammadī Gīlānī. Her theories about the ḥudūd maxim and what they reflect about legal maxims generally are discussed in the text of the dissertation.’” Majalla-i qaḍāʾī va-ḥuqūqī-yi dādgustarī-yi Jumhūrī-yi Islāmī-yi Īrān 5. legal treatises. 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. I have omitted reference to the Ibāḍī school. “Āshināʾī bā qāʿida-i ‘al-ḥudūd tudraʾ biʾl-shubahāt. 1998). I combine                                                                   28 I am aware of four articles and four monographs. Athar al-shubahāt fī darʾ al-ḥudūd (Riyadh: Maktabat alTawba. including a few on the ḥudūd maxim itself. ʿAqīla Ḥusayn. Mūsawī Bujnūrdī. a recent article that takes a law and society approach is that of Maribel Fierro. Misfir al-Daghghār al-Wādiʿī. 19    29 . I draw on the earliest extant sources typically used for Islamic law (both Sunnī and Shīʿī)29—ḥadīth studies. The articles include Muḥammad Bahrāmī. I focus on the major Sunnī and Shīʿī schools. 15-16 (1375): 25-30.’” Faṣlnāma-i dīdgāhhā-yi ḥuqūqī 8 (1365): 11-36. The monographs include Saʿīd Manṣūrī. Qāʿidat al-darʾ (Qum: Muʾassasat al-Nashr al-Islāmī alTābiʿa li-Jāmiʿat al-Mudarrisīn bi-Qum al-Musharrafa. “Barrasī va taḥlīl-i fiqhī va ḥuqūqī-yi qāʿida-i ‘tudraʾ al-ḥudūd biʾl-shubahāt. In an attempt to reconstruct the varied aspects of the history and concepts of Islamic legal maxims generally through the ḥudūd maxim particularly. jurisprudential works. “Idraʾū al-ḥudūd bi-l-shubuhāt: When Lawful Violence Meets Doubt. Some studies have focused on individual maxims. and fatwā collections—and add consideration of legal maxims discussions in both those early materials and in later independent collections of maxims. and provide some examples of application in fiqh works in particular or across various schools of law. Exceptionally. 2-3 (2007): 208-38.’” Dīdgāhhā-yi ḥuqūqī 5-6 (1376): 19-56. 1375/[1997]). 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.” Hawwa 5. Qavāʿid-i fiqh: bakhsh-i jazāʾī—fiqh-i taṭbīqī-yi qāʿida-yi darʾ (Tehran: Tadbīr. Saʿīd b. 2003). 1428). Muḥammad Ḥasan al-Rabbānī. Zaydī. 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. For space considerations.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.each.

stretching from the 10th through 16th centuries. 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. From these sources. my work first demonstrates the centrality of legal maxims to judicial deliberations in Islamic law.” 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. further detailing the mechanisms of interpretive processes. This first half of the dissertation focuses on both social and intellectual historical themes. especially as seen in the “jurisprudence of doubt.these sources with material useful for placing legal themes in the surrounding contexts of social and intellectual history—biographical dictionaries. the remainder highlights the intellectual turns taken by the maxim in Islamic law’s “professional” period. when the maxims first arose and developed most drastically. 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. the 7th through 9th centuries. 20    . Legal maxims. As far as these gaps are concerned. initial emphasis is on the early (preprofessional) period of Islamic law. literary sources. historical chronicles. this study adds a third prong to the bipartite model of Islamic law. heresiographal works. and theological works. By detailing how jurists make this move in criminal law. The result is a composite contribution intended to address existing gaps in studies of Islamic law relevant to this field and to comparative contexts. While the period covered spans centuries.

I present an alternative model to a common view of Muslim jurists as formalist-textualists who faithfully interpreted “the” law.Second and relatedly. and the rule of law. in many ways. 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. In English. they constructed the law through the use and expansion of legal maxims. 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. discretion. Currently. this study demonstrates how. As an end-point to the dissertation. This. despite the increasing interest in maxims resulting from growing recognition of their importance for Islamic law and history. this list will provide a starting point for future studies in the field. Finally. there are no such catalogs of this literature that display the wideranging scope of the field. there are no detailed studies of maxims literature and precious few resources available. for ongoing studies of Islamic law. 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. and possibly for the future of Islamic legal thought. 21    .

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

And they typically treat rebellion and highway robbery together (ḥirāba or qaṭʿ al-ṭarīq) under the same general rubric of criminal law. 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). 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. Rebellion certainly must be regarded as a separate category because jurists view it as a category of political resistance.” The Muslim World 91.legislator in Islamic law. the matter was less clear-cut in practice. though juristic treatments of these two categories were grouped together. and intoxication (shurb al-khamr). Rather. slanderous accusations of sexual impropriety). 23    . Most also treat apostasy (ridda) as such a crime—though there is no (this-worldly) Qurʾānically specified punishment for it.”33 There is often a question as to the line dividing terrorists from legitimate rebels. they fall outside of their own technical definition of                                                                   33 For a discussion with this rendering of the term. 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. which is not itself banned. the Qurʾān bans highway robbery or acts of “domestic terrorism. see Sherman Jackson. The Qurʾān was a static text but sparse on details of law. While in theory ḥudūd laws came from God and humans were barred from making or altering these laws. Case in point: Muslim jurists did not agree on what counts as ḥudūd laws. Jurists are mere faithful agents charged with simply interpreting and applying the law. 3 & 4 (2001): 293-310. theft (sariqa). the more detailed Sunna was known through a series of scattered ḥadīth texts of often dubious authenticity.

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

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

ed. cf. al-Aḥkām al-sulṭāniyya. despite— or rather. 6:190 (Muḥammad ʿUmar ed.. e. Where a textualist or common law lawyer might see juridical legislation and common law crimes. in attempts to counter-define the ḥudūd laws. 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. A combination of prior practices (attributed to Sunna) and necessity allowed the political authorities to prosecute and attach discretionary penalties (taʿzīr) to these acts. Muḥammad Fahmī al-Sirjānī ([Cairo]: al-Maktaba al-Tawfīqiyya. They not only had to                                                                   38 Only a minority of jurists placed the laws of qiṣāṣ in the ḥudūd category. and the high stakes of criminal convictions drove them to develop firm criteria for defining the law.39 Jurists defined and specified sentence ranges for these acts too. 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. Yet. Bināya. To the contrary. 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. Beirut. 2:577. Jurists did not see their interpretive activities as juridical legislation. they staunchly subscribed to the doctrine of legislative supremacy and saw ḥudūd laws as authorized by nothing less than divine origins. See Māwardī. 2:1022 (maintaining that the ruler must apply taʿzīr punishments in instances that affect the public interest). Badr al-Dīn al-ʿAynī.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. In short. [1978]). Ḥāwī. because this category permitted discretion to the victim’s family as to the extent of the offense. See. the indeterminate nature of the texts. Ibn Rushd al-Ḥafīd. idem.this included the laws of retaliation (qiṣāṣ). 26    . because of—the doctrine of divine legislative supremacy.. Bidāyat al-mujtahid. ambiguities surrounding the definition of the specified crimes compared to real-world acts. 1990) (noting that Bazdawī does so in his Mabsūṭ).

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. 27    . It is against this backdrop that the ḥudūd maxim emerged.confront political excesses in regulating violence and distinguish ḥudūd laws from other criminal laws conceptually.

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

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

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

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

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

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

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

alLajna min al-Mukhtaṣṣīn bi-Ishrāf al-Nāshir (Beirut: Dār al-Fikr. there are references to a potentially non-Kufan Yazīd b. a slightly different picture emerges. no. On the Kufan Yazīd. 1994). Damascene. Further. 35    . 32:130-31. The absence of non-Kufan transmitters in the chain. as in one chain for the ḥudūd maxim. other than Zuhrī. Sinān (d. Abī Ziyād. ed. neither of whom transmitted traditions to prominent traditionist Wakīʿ b. see Ibn Abī Ḥātim. (Abī) Ziyād who lived at the time of the one found in these chains. The Yazīd in the chains for our report of the ḥudūd maxim is not the Basran or the Medinese. no. 135/752) was originally from Damascus before he moved to Basra. Bashshār ʿAwwād Maʿrūf (Beirut: Muʾassasat al-Risāla. Ziyād or Yazīd b. as noted in most chains for the ḥudūd maxim. 9:262. ed. 9:262-63.18 Nevertheless. Abū al-Fidāʾ ʿAbd Allāh al-Qāḍī (Beirut: Dār al-Kutub al-ʿIlmiyya. it is impossible to tell conclusively which of the Yazīds the traditionists thought transmitted the text—the Damascene or the Kufan. 1984). such that more chains with Medinese authorities are to be expected. al-Ṭabaqāt al-kubrā. Tahdhīb al-Tahdhīb. (The sources are uncertain as to whether the proper name is Yazīd b. On the Damascene Yazīd. Abū Khālid ʿUqayl b. 7:519 (ʿUqayl). 4000 (ʿUqayl). Additionally. Tahdhīb. 3:209. no. or Kufan. he would not have been the only one. See Ibn Saʿd. no. ʿAqīl (d. 4:43-46. Ibn Ḥajar. Muṣṭafā ʿAbd al-Qādir ʿAṭāʾ (Beirut: Dār al-Kutub al-ʿIlmiyya. Jordan) and Abū ʾl-ʿAlāʾ Burd b. Mizzī. see Ibn Abī Ḥātim. the chain fans out to non-Kufan traditionists ʿUqayl and Burd. Khālid b. no. 1986). 6988. Tahdhīb alTahdhīb.where the Prophet and his followers—said to have articulated the saying—lived. 11:284. 655 (Burd). 1109 (ḍaʿīf). Rabīʿa. al-Jarrāḥ as did the Yazīd in the ḥudūd maxim chains. Tahdhīb. each from one of the aforementioned regions. whose identity is confused in the sources—which variously cite him as Basran. ed. he may have been the unreliable Damascene who transmitted from Zuhrī and to Muḥammad b. 32:134-35 (munkar al-ḥadīth). ed. ʿAlī Muḥammad ʿUmar (Cairo: Maktabat al-Khānjī. here. no. 144/761-2) is from Ayla (in present-day Aqaba. 1107. Instead. there were four potential candidates of known traditionists named Yazīd b. 2001). 7:2714-15 (munkar al-ḥadīth). however. 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). (Abī) Ziyād. Ibn al-Jawzī. 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. transmitted to some of the same traditionists. and that if the Medinese Zuhrī indeed heard the saying from earlier authorities. it was frequently impossible to tell which traditionist was meant when copying ḥadīths from written works. 8035. 1992). and thus were regularly confused in the sources. Accordingly. Abū ʾl-Ḥajjāj al-Mizzī. no. who transmitted from Zuhrī and to Wakīʿ. Ibn Ḥajar al-ʿAsqalānī. 1970). This absence is not. Ibn ʿAdī . the son of Ziyād or Abū Ziyād—as these lived at the same time and place. Kitāb al-Ḍuʿafāʾ waʾl-matrūkīn. ed. 20:242-45. or whether those were two different people who transmitted to and from some of the same traditionists. Specifically. 8037. al-Jarḥ waʾl-taʿdīl.                                                                   18 These two traditionists are Shāmī.) In sum. quite as absolute as appears from the chains that Schacht analyzed. Tahdhīb al-Kamāl fī asmāʾ al-rijāl. there is a Medinese Yazīd who is confused with the Damascene one. He may also have been the reliable Kufan. al-Kāmil fī ḍuʿafāʾ al-rijāl. When the full range of the ḥadīth collections of the period are taken into account. al-Jarḥ waʾl-taʿdīl (Hyderabad: Maṭbaʿat Jamʿiyyat Dāʾirat al-Maʿārif al-ʿUthmāniyya. Mizzī. from the Medinese Zuhrī. 11:285. no. 3781.

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

. but this basic distinction is germane to the discussion here.” 221. 219-20. 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]. see ibid.. I see no problem in considering that the legal maxim already circulated at the times of Ibrāhīm al-Nakhaʿī. I would group the ḥadīth versions into three broad categories of content.25 In this way. 6. this is one of the formulas used of ancient opinions. 237-40 (quoted and discussed in Fierro. Muʿādh b. It alone appears at all levels of the ḥadīth collections—the pre-canonical. which have questionable attributions to Ibn Masʿūd or to Ibrāhīm al-Nakhaʿī. ca. Thus. and 5.Kufian Iraqian school in the generation preceding Abū Ḥanīfa. 3.. then to a number of individual Companions. 184 (cited and discussed in Fierro. ʿĀmir (version 4) and with other attributions to Zuhrī (version 6) or ʿUmar (version 7). 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. Her more detailed categories differ from mine.” as in versions 1.23 In a recent review of Schacht’s theories on this maxim. The first prescribes ḥudūd avoidance given some “exculpating cause” or “to the extent possible. .” 220). she concludes that the dating was different from the one that                                                                   22 Ibid. 23 24 25 Ibid..” 221). The third category combines the first two and/or offers a rationale for ḥudūd avoidance. The maxim cannot be older than the end of the period of the Successors. then Ibrāhīm al-Nakhaʿī (d. and post37    . with eight independent chains in contrast to the single chains of all other versions. the maxim is introduced with the words ‘they used to say’. 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.24 Unlike Schacht. and 7.”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. As an anonymous slogan. was then ascribed to the ‘Companions and Successors’ in general. “When Lawful Violence Meets Doubt.. 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. “When Lawful Violence Meets Doubt. Jabal. and finally to the Prophet . This version combines the “as much as possible” and “ambiguity” language with a rationale explaining why ḥudūd sanctions should be avoided. as in versions 2 and 8. “When Lawful Violence Meets Doubt. The second category requires ḥudūd avoidance typically in the presence of shubha or shubahāt. with questionable attributions to the three Companions Ibn Masʿūd. canonical. Fierro. Version 2 is noteworthy because it becomes the most oft-cited (in later works) and most widely diffused. and ʿUqba b.

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

222-26. Ibid. elite Ḥanafī jurists who stood to benefit from a broad disregard of                                                                   26 Ibid. one that eliminated its indiscriminate and arbitrary character. 27 28 29 Ibid. A new wording was necessary. 39    . the standard version “is explicitly associated with the two most important pupils of Abū Ḥanīfa. 222-23 (discussing Zufar’s case).. see also ibid. 236 (idraʾū ʾl-ḥudūd ʿan al-muslimīn mā ʾstaṭaʿtum).29 Second.. as reflected in the [“as much as you can”] formula .. . especially under pressure from the ‘pious opposition’ . esp. especially when a clever jurist was able to find a ‘hole’ in the law.28 She postulates that this led to the Ḥanafī circulation of the standard formula (idraʾū ʾlḥudūd biʾl-shubahāt) in Kufa.. .former.” With this concern at the back of the minds of the elite.. First.” which “must have been influential in the formulation of the principle idraʾū al-ḥudūd bi-l-shubuhāt. Ibid. was the oldest formula .. “[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. In her estimation. In sum. while still allowing for possible ways of escaping the penalty. ḥudūd avoidance was quickly linked with “concern for people of high social standing.”27 She then describes a sea change: By the second half of the second/eighth century.. she relies on two central observations. Zufar and Abū Yūsuf”—who continued to benefit from the earlier and more flexible formulation. As corroborating evidence.. this version comes at times with a telling addendum instructing judges to overlook the faults of those of high station.”26 To that end.. that formula must have been seen as no longer acceptable: ḥudūd had to be taken seriously. she concludes. 231-22 (discussing Abū Yūsuf’s case). .. she relates several stories from later historical reports that she takes as proof that “the general and indiscriminate import of that saying . she elaborates..

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

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

) In gratitude. 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). he said. Wafayāt al-aʿyān (Beirut: Dār al-Thaqāfa. with no direct or corroborating evidence (i. the matter was sufficiently doubtful to avoid the ḥadd sanction. see D. 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 Fierro.S. 252-4 (for an English translation. He proceeded to his appointment with the caliph. Mirʾāt al-jinān wa-ʿibrat al-yaqẓān fī maʿrifat ḥawādith al-zamān (Beirut: Muʾassasat al-Aʿlamī liʾl-Maṭbūʿāt. see also Abū ʿAbd Allāh al-Yāfiʿī.be locked in his room.e.33 The anecdote is obviously a stylized narration. 1390/1970). Christian Lange.. see also Ibn Khallikān.” 231-32.” Hārūn prostrated (in joy).34                                                                   33 This story is repeated relatively frequently in the literary sources. [1968]). 2008). “No. minus the intrigues and favors of royalty. this episode eventually led to Abū Yūsuf’s judicial appointment and ensured his continuing elite status. 1922). Taʾrīkh Ibn al-Wardī (Najaf: al-Maṭbaʿa al-Ḥaydariyya.” Hārūn asked. 42    . a confession or four eyewitnesses to the act). 136-37). 1:281 (reporting this event under the year 181 AH).. 6:381-82. 34 Scholars recently have taken note of this story in contexts discussing the ḥudūd maxim. “concerning an imām who witnessed [another] man committing zinā. The young man gestured at Abū Yūsuf in an appeal for help. 192. 1971-73). According to the lore. its effect is to feature the ḥudūd maxim in popular form as prophetic. Justice. Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University Press. Nishwār almuḥāḍara wa-akhbār al-mudhākara. (We are reminded of Ali’s decision regarding the murder in Medina told at the outset. Ibn al-Wardī. “What is your opinion. but the jurist could not make out what he wanted. Margoliouth trans. See Qāḍī al-Tanūkhī. ʿAbbūd al-Shāljī (Beirut: Dār Ṣādir. ed. 1969). 1:383 (quoting Ibn Khallikān and reporting this event under the year 182 AH). “When Lawful Violence Meets Doubt. The Table Talk of a Mesopotamian Judge (London: Royal Asiatic Society. the caliph bestowed upon Abū Yūsuf a considerable amount of money and favor on behalf of the offending prince.” Judicial knowledge is insufficient evidence to establish a crime.

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

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

As such. for instance. though this was prohibited by ʿUmar b. Saʿīd Muḥammad al-Laḥḥām (Beirut: ʿĀlam al-Kutub. 99-101/717-720). ed. There are several other                                                                   37 Though early sources for practices in Mecca and Syria are sparser than those for Medina and Iraq. 2001). 38 39 ʿAbd al-Razzāq. Wakīʿ (d. instead. ʿAbd al-ʿAzīz declared that he would have stoned her if it were not for her ignorance of the law.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. ʿUmar b. for instance. For example. 306/918) also cites instances of ḥudūd avoidance on the part of the Syrian Umayyad judge Faḍāla b. there are indications that jurists followed practices of ḥudūd avoidance in cases of doubt there as well. He held. ʿAbd al-Razzāq tells us that ʿUmar b. 161/778). along with some others. 8:255 (duriʾa ʿanh al-ḥadd biʾl-shubha). 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. 617. Ḥabīb al-Aʿẓamī (Beirut: al-Maktab al-Islāmī. 7:210. 8:430 (yudraʾ ʿanh al-ḥadd). the Ḥijāz. 1392/1972). Other Early Jurists Sources indicate that the maxim was applied elsewhere in Iraq. 45    . ʿAbd al-Razzāq. Similar instances of Awzāʿī’s practices in this regard appear in Ibn Qudāma’s Mughnī and Ibn Ḥazm’s Muḥallā. avoided determining that there was ḥadd liability for zinā in the case of a woman who married (or had intimate relations with) her slave. Ibid. ed. al-Muṣannaf fī ʾl-ḥadīth. Akhbār al-quḍāt. Muṣannaf (1972). a contemporary of Abū Ḥanīfa and his associates. who lived in Medina and then in Syria. who operated outside of their circle in Iraq and was considered to be a founder of his own school. he commanded her to sell the slave to someone who would remove him far from the vicinity. ʿAbd al-ʿAzīz (r. Syria. ʿUbayd al-Anṣārī. She had been married before. Wakīʿ. and so she was eligible for the stoning punishment for zinā. and the other major centers of the Islamic world.B. the maxim found broad application by Sufyān al-Thawrī (d. 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).37 In Iraq.

ed. Applying that principle here.40 Medinese jurists also applied the maxim. 6:207. Ibn al-Qāsim (d. 1990). but that on a related matter had cited the ḥudūd maxim in its popular form (idraʾū ʾl-ḥudūd biʾl-shubahāt) on anonymous authority. For other instances of Thawrī’s ḥadd-avoidance. the act would be fornication and the punishment flogging.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. who transmitted the version of the Mudawwana in which this story appears. For instance. If he did consummate the marriage and then was proved to have had intimate relations with another woman. by the operation of this maxim. Muṣannaf (1972). ʿAbd al-Razzāq. 1996).instances in which Thawrī applied the maxim. 191/806). 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. see Muḥammad Rawwās al-Qalʿahjī. the ḥadd is to be avoided: duriʾa ʿanh al-ḥadd. if not. Muwaṭṭaʾ. Yaḥyā al-Laythī. Mawsūʿat fiqh Sufyān al-Thawrī (Beirut: Dār al-Nafāʾis. that Mālik did not speak to this precise issue. 41 See Mālik b. narration of Yaḥyā b. Anas. 46    . often in a way that closely echoed the language of the standard formula. 3:393 (holding that if a man permits his slavewoman to have sex with another man. he applied the principle without citing the maxim or language close to it. Ibn al-Qāsim noted that. 241-44. Bashshār ʿAwwād Maʿrūf (Beirut: Dār al-Gharb al-Islāmī. the act would be adultery and the punishment stoning. even though this is illegal. told Saḥnūn. Mālik invoked it. Mālik’s student and the most important jurist in forming early Andalusian Mālikī law. 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. the ḥadd is to be avoided: yudraʾ ʿanh al-ḥadd). the ḥadd punishment is                                                                   40 In many of these cases. and that if a man has sex with his son or daughter’s slavewoman also.

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

the maxim is attested in the ʿAlid community in Kufa as well. Ḥanbal cited the maxim. 253-54 (fa-udriʾ ʿanh al-ḥadd). it became apparent to her that the man was eligible for the ḥadd sanction. 1376): 126-49. This source is dubious. and the maxim does not appear in the “canonical” version of the letter recorded in al-Sharīf al-Raḍī (d. For discussion of the canonical Shīʿī ḥadīth collections. In the first cases. ed. ed. That is. He noted nonetheless that the Prophet had applied the principle to a woman suspected of zinā who claimed she was raped. Aḥmad b. Qaḍāyā. Tuḥaf al-ʿuqūl. she fell on her sword—perjuring herself. retracting the testimony. ʿAlī Akbar al-Ghaffārī (Tehran: Maktabat al-Ṣadūq. Musnad. 46 47 48 Ibn Ḥanbal. 48    . At most.46 It is unclear whether Ibn Ḥanbal regarded this report from the perspective of a ḥadīth scholar or a jurist. in a celebrated letter of investiture and advice upon sending him to be governor of Egypt. 1967). accusing her husband of illicit sexual relations. Ṣubḥī al-Ṣāliḥ (Beirut: Dār al-Kitāb al-Lubnānī. note 61. 406/1015). to follow the wisdom of the ḥudūd maxim. he thought—like other early ḥadīth scholars—that the saying was of dubious authenticity. and this ambivalence later reveals itself in his school’s traditionist jurisprudence. In one case.47 It is listed in the works of ʿAlī’s judgments collected there in the third century. a man gave his wife a slavewoman and then had sex with her. end of the 4th/10th or 5th/11th century). and thereby avoiding the ḥadd punishment. In the form of a prophetic ḥadīth. Mālik al-Ashtar. the Prophet declined to punish her for having illicit sexual relations given possibility of a lack of voluntariness on her part. which—as we will see—takes on differing degrees of opposition to the ḥudūd maxim (at least as a prophetic ḥadīth). see below. letter no. See Ibn Shuʿba (d. while in the last case. When the woman complained to ʿAlī. Nahj al-balāgha.In Baghdad some decades later. 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. 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. ignorance of the law diminishes culpability for clearly prohibited acts. Finally. 128. See Qummī. 53. 5:416. 426-45. One source has it that ʿAlī advised his faithful companion. Fearing the harsh consequences against him.

beginning with Ibrāhīm al-Nakhaʿī). Rather.49 If his insistence on these bases is taken at face value to be an indispensable feature of his jurisprudence. Risāla. particularly where they were so widely diffused so as to be considered self-evident policies attested by continuous community practice). whose work of legal theory. al-Risāla. he would have taken the maxim to express a self-evident or self-authenticating practice reflecting the consensus of common precedent. Several jurists relied on the standard version. 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. increasing reliance on ḥadīths used to claim or bolster one’s arguments against divergent views and practices. during the time when we have firm textual-historical evidence of juristic use of the maxim (that is. perhaps a type of implicit consensus. it is to argue precisely the opposite. emphasizes appeals to textual sources (Qurʾān and ḥadīth. Muḥammad Nabīl Ghanāyim and ʿAbd al-Ṣabūr Shāhīn (Cairo: Markaz al-Ahrām liʾlTarjama waʾl-Nashr. especially. This is not to signal agreement with Schacht’s assumption that a jurist will use a ḥadīth if he or she knows it. 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. 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. 1988). On this account. as well as consensus). 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. It is perhaps on that basis that Shāfiʿī and others avoided ḥudūd punishments in certain situations. He instead applied it as a legal maxim grounded in other authority.The preceding discussion indicates that the maxim was widely applied in the major regions of the Muslim community where the law was elaborated. 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. ed. and a later. Muʾassasat al-Ahrām. 49    . This is particularly striking in the case of Shāfiʿī. following the                                                                   49 Shāfiʿī.

” Islamic Law and Society 14. 1 (2008): 1-41. During the same period. we find a prophetic attribution in the work of Ḥanafī jurist Jaṣṣāṣ (d. Dāraquṭnī (d. but the chains had by then acquired prophetic origins. as a kind of “superprecedent” for which specific attribution is either unnecessary or uncommon. “al-Qāḍī al-Nuʿmān and Ismāʿīlī Jurisprudence. this maxim is functioning. Ibn ʿAdī (d. Poonawala. After the traditionist triumph culminating in the 4th and 5th centuries of the Hijra. “Critical Rigor vs. IV. 363/974). For Qāḍī Nuʿmān’s biography and life as a judge in the early Fāṭimid empire. See Jonathan Brown. 385/995) and Bayhaqī (d. 458/1066) copied the earlier ḥadīth versions.50 This would explain why. see Ismail K. Daʿāʾim al-Islām. Mustadrak al-Wasāʾil (Muʾassasat Āl al-Bayt liIḥyāʾ al-Turāth. 2:466. widely circulating principle requiring no attribution. 1653 (cited in Ḥusayn b. as do legal maxims in other legal spheres. Sunnī. ʿAlī Aṣghar Fayḍī (Cairo: Dār al-Maʿārif. 1960). Āṣif b. in applying the principle. 18:26.” in 50    52 . and it usually appeared with new prophetic attribution amongst its proponents.51 As noted. Juridical Pragmatism: How Legal Theorists and Ḥadīth Scholars Approached the Backgrowth of Isnāds in the Genre of ʿIlal al-ḥadīth. 370/981). By then. and Imāmī Shīʿī contemporaries recorded formulations that begin with the standard version: Qāḍī Nuʿmān (d. See Qāḍī Nuʿmān. 381/9912). and Ibn Bābawayh (d. [1407/1986-7].earlier widespread practice. this state of affairs changed. that of the jurists. ed. If accurate. Aḥkām al-Qurʾān (Cairo: al-Maṭbaʿa al-Bahiyya. no. Muḥammad Taqī al-Nūrī al-Ṭabarsī.911)). In other words. no.                                                                   50 They may have done so out of a notion that the practice traced back to the Companions and even the Prophet. 21. the ḥudūd maxim had become the central principle of Islamic criminal law. 51 In another realm detailed below. 365/976). Ismāʿīlī. Shāfiʿī simply says that “we avoid ḥudūd punishments in cases of ambiguity” (emphasis added).52 The formulation of Qāḍī Nuʿmān and Ibn ʿAdī is of particular interest. indicating that this is an axiomatic. [1928?]). respectively. this fits easily with the idea of a legal maxim in the sense of a formalized substantive canon with deep—but anonymous—roots. 3:330. Splicing Maxims for a Touch of Class The prophetic attributions begin in the 4th/10th century.

wa-aqīlū ʾl-kirām ʿatharātihim illā fī ḥadd min ḥudūd Allāh).” Ibid. ed. There are questionable references to its presence in Ibn ʿAdī’s works.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. where we might expect it. 53 See Fierro.” 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. al-Kāmil.54 Signifantly.g. 1996). especially when a clever jurist was able to find a ‘hole’ in the law. Jāmiʿ al-aḥādīth (Beirut: Dār al-Fikr. as the above survey of early traditionists and jurists reveals. no. e. 236. ʿUmdat al-qārī ([Cairo]: Idārat al-Ṭibāʿa al-Munīriyya.. Ibid. one that eliminated its indiscriminate and arbitrary character. 1:135. 20:259. It is doubtful that this maxim existed in this form in the early period. 755/1451).. 117-43. while still allowing for possible ways of escaping the penalty.” The first part is the standard ḥudūd maxim. Farhad Daftary (Cambridge: Cambridge University Press. it seems to combine two different ideas of ḥudūd avoidance and ḥudūd enforcement. Jalāl al-Dīn al-Suyūṭī.” 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 … . See Badr al-Dīn al-ʿAynī̄ (d. Several authors cite a work ascribed to Ibn ʿAdī with a simple attribution to Ibn ʿAbbās. though he does not provide his source. A new wording was necessary.At first blush. We have no contemporaneous reports of it. 1998). 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. And the combined formulation figures into Fierro’s theory that the maxim emerged as a tool used originally to benefit the elite. Qāḍī                                                                                                                                                                                                 Mediaeval Ismāʿīlī History and Thought. 793 (fī juzʾ lah min 51    . “When Lawful Violence Meets Doubt. 1348/1929-30). that formula [“as much as you can”] must have been seen as no longer acceptable: ḥudūd had to be taken seriously … . 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. except as concerns criminal penalties (idraʾū ʾl-ḥudūd biʾl-shubahāt. ʿAynī is the earliest reference I have identified and the only one to give a chain of transmission (see Appendix. Version 11). and we will call the second part the aqīlū (overlook) saying. 54 The attribution of this saying to Ibn ʿAdī is problematic. as discussed below.

and ʿAbd al-Raʾūf al-Munāwī. 1988) (s. 1969?). Muṣṭafā Muḥammad al-Dhahabī ([Cairo]: Dār al-Ḥadīth. the names of the individual narrators in ʿAynī’s chain).v. ed.” 218. during the same early period surveyed. no. 16:324. There is some confusion among later scholars about the proper attribution and source of this report.” it had a Kufan pedigree and appeared in the canonical ḥadīth collections of Ibn Mājah and Tirmidhī. 8:36-37.972 (same). no. note 169. 314 (same).Nuʿmān took his attribution of this version of the ḥadīth to the Prophet from an earlier source that had combined the two different sayings.v. and application. Dhahabī. For instance. But the two were quite distinct in attribution. A. ed. we know that the ḥudūd maxim in all its versions was a nonprophetic saying attributed to Companions or adduced anonymously. 5:309. ed. 2:142(1). 52    . the editor uses the same language as Suyūṭī except that he interpolates fī ʾlKāmil in place of the source mentioned by Suyūṭī. rather than Ibn ʿAdī. As detailed above. 12. 1:156. al-Bayān waʾltaḥṣīl. Muʿjam aḥādīth ḍuʿafāʾ al-rijāl min Kitāb al-Kāmil (Beirut: Dār al-Fikr. note 2 (s. 975/1567). al-Fayḍ al-qadīr ([Cairo]: Maktaba wa-Maṭbaʿat Muṣṭafā al-Bābī al-Ḥalabī. Muḥammad Ḥajjī (Beirut: Dār al-Gharb al-Islamī. 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). Siyar.55 And of equal significance is the fact that. one commentator notes that this version of the tradition is in Ibn ʿAdī’s Kāmil. 1984). see also Fierro. See Yūsuf al-Biqāʿī. as a “ḥadīth. “When Lawful Violence Meets Doubt. Zufar b. also: editor’s note that akhrajah Ibn ʿAdī fī juzʾ lah ʿan Ibn ʿAbbās marfūʿan biʾl-lafẓ). See Muḥammad Ḥasan Ḍayf Allāh. though Munāwī attributes it to Ibn ʿAdī in his Taysīr when commenting on Suyūṭī’s al-Jamīʿ alṣaghīr. In addition. Recall that. it circulated widely in juristic circles (including Iraq. 2000). The latter is incorrect if the Ṣanʿānī traditionist ʿAbd al-Razzāq is meant. al-Taysīr: sharḥ al-jāmiʿ al-ṣaghīr (liʾl-Suyūṭī). narrates this tradition on the authority of Ibn ʿAbbās.. Attribution and Circulation: Two Different Circles As for attribution. note 33 (noting that her search for this ḥadīth in al-Kāmil was inconclusive). See the editor’s note in Ibn Rushd al-Jadd. circulation. 55 See below. the Ḥijāz. But my examination of al-Kāmil revealed no such ḥadīth in that book. note 65. and elsewhere) during the first three centuries of the Hijra. he mentions in his Fayḍ that ʿAbd al-Razzāq. Ibn Rushd’s editor seems to be quoting Suyūṭī’s reference to Ibn ʿAdī’s work mentioned in alJamīʿ al-ṣaghīr (see above). whence al-Muttaqī al-Hindī (d. as no such attribution appears in his Muṣannaf. Kanz al-ʿummāl (Aleppo: Maktabat al-Turāth al-Islāmī. both parts of this ḥadīth were in wide circulation as separate sayings. Hudhayl) (quoting without citing Suyūṭī [above]. 1964). As a maxim. two principal versions of the maxim circulated alongside each other during that                                                                                                                                                                                                 ḥadīth ahl Miṣr waʾl-Jazīra ʿan Ibn ʿAbbās).

In early Sunnī ḥadīth collections. 57 Daʿāʾim is the most authoritative compendium of law for Ṭayyibī Ismāʿīlīs. Nasāʾī. Ṭāʾif).e.58 In both contexts. Ḥazm or one of his close descendants (i. Mustadrak al-Wasāʾil. and Dāraquṭnī. no. then spreading out from Abū Bakr or his son). the chains of the aqīlū saying indicate a circulation in the Ḥijāz (Mecca. Ḥazm. 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. Ibn Ḥibbān. Circulation and citation of the two statements are quite different as well. no. What about the aqīlū saying? Sunnī and Shīʿī ḥadīth literature each present largely uniform views of the source of the aqīlū saying. wa-awmaʾa bi-yadih kaʾannah bi-hā yaẓull shayʿan).period. It is also a source of Imāmī Shīʿī ḥadīth. Medina. though with different versions among the two camps of traditionists and jurists.” Journal of Near Eastern Studies 35 (1976): 29-40. the aqīlū saying originates with the Prophet via ʿĀʾisha—Abū Bakr b. “The Sources of Ismāʿīlī Law. ʿAmr b. 1653). The notable point here is that all versions of the aqīlū ḥadīth trace back to the Prophet via ʿĀʾisha—…—Abū Bakr b. ʿAmr b. are recorded with four different endings in Ibn Ḥanbal. 21. 18:26. 58 For example. 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. Amongst Sunnīs. Abū Dāwūd. See Wilferd Madelung. Whereas the transmitters of the ḥudūd maxim indicate a Kufan origin or circulation. at 29. ʿAmr b. Ibn Rāhawayh. see also Ṭabarsī. usually alongside other Ḥijāzī sayings calling on Muslims                                                                   56 The most common versions of the aqīlū saying (aqīlū dhawī ʾl-hayaʾāt …). 11:534.56 As for Shīʿī sources. Abī Bakr and/or his father Abū Bakr b. Bayhaqī. 53    . via ʿĀʾisha—ʿAmra—Muḥammad b. see al-Ḥurr al-ʿĀmilī.57 attributing it to Jaʿfar al-Ṣādiq rather than to the Prophet. it appears only in a few collections. The less typical version is the one that appears in the second part of this ḥadīth (aqīlū ʾl-kirām ʿatharātihim …). but other Shīʿī ḥadīth sources do. Ḥazm or one of his sons. Nasāʾī includes two other versions with the same chain. Wasāʾil. none of which accord easily with their records concerning the source of the ḥudūd maxim. 3 (ajīzū [or aqīlū] li-ahl al-maʿrūf ʿatharātihim waʾghfirū lahum fa-in kaffa ʾllāh ʿazza wa-jalla ʿalayhim hākadhā.911 (citing Qāḍī Nuʿmān. 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. Daʿāʾim.. no. Qāḍī Nuʿmān does not record the saying alone.

1984-94). 7253-58. Sunan. 6:54. Rāhawayh (d. Kanz al-ʿummāl. 17. 6:181. 3:277. 238/853). 307/918). 90. The Shīʿī evidence likewise suggests different realms of circulation. For inclusion of the saying in later collections. 4953. 54    . Mustadrak al-Wasāʾil. al-Muttaqī alHindī (d.62 The two maxims appear                                                                   59 Especially the “taʿāfaw saying. Ibn Ḥanbal (d. 8:363-4. ʿIwaḍ Allāh b. no. Versions of the ḥudūd maxim appear in Ibn Bābawayh’s collection. 1407/1987). Muṣannaf (1972). 755/1451). 4375 (English translation in Sunan Abu Dawud. ʿAbd al-Ghafūr b. ed. 3:137. 354/965).” which encourages people to overlook each other’s faults so long as offenses have not been brought before the court. 5:121-24. ʿAlī Akbar al-Ghaffārī (Qum: Jamāʿat al-Mudarrisīn fī ʾlḤawza al-ʿIlmiyya. Muḥammad and Abū al-Faḍl ʿAbd al-Muḥsin b. 6:210. late 9th/15th century). 17. see Badr al-Dīn al-ʿAynī (d. Abū Maʿādh Ṭāriq b. 3:207. 7:12. ed. Bayhaqī. no. 241/855). see Sunan Abu Dawud. Sunan (Beirut: Muʾassasat al-Risāla. Musnad. 5:74. 5:74). Nasāʾī. 1994). see Abū Dāwūd. Ḥusayn alṬabāṭabāʾī al-Burūjirdī. 7331-32. 10:229. 21. Nasāʾī. al-Sunan al-kubrā. nos. 7:302. 1:296. ed. 4376 (for an English translation. 1:236.). Abū Yaʿlā (d. see Ibn Abī Jumhūr al-Aḥsāʾī (d. 60 For the two citations in the Sunnī canonical collections. Ibn Bābawayh. the aqīlū saying appears in Abū Dāwūd and Nasāʾī.627-79. Sunan. arranged by ʿAlāʾ al-Dīn b. no. Ṭabarānī (d. 11:534. For other contemporaneous sources and references through the 5th/11th century. ed. Balabān al-Fārisī (Beirut: Muʾassasat al-Risāla. Ḥusayn Salīm Asad (Damascus: Dār al-Maʾmūn liʾl-Turāth. no. ed. as a valid principle of overlook the faults of fellow Muslims generally. 8236. in which case adjudication and/or punishment become mandatory. no. 2008). no. For example. 4:537. ʿAbd al-Ḥaqq al-Balūshī (Medina: Maktabat al-Īmān. 1997). Musnad. Mohammad Mahdī al-Sharīf (Beirut: Dār al-Kutub al-ʿIlmiyya.611. records a version of the saying (citing Furūʿ [= Kulaynī. See ʿAbd al-Razzāq. For later sources. see Isḥāq b. Abū ʾl-Qāsim al-Ṭabarānī. 2:567. which draws on mostly Kufan ḥadīths reported on the authority of scholars in Qum. 6212. 7562. 1995). Jāmiʿ aḥādīth al-Shīʿa (Qum: Maṭbaʿat al-Mihr. Ibn Ḥibbān (d. 1983-1985). Sunan. 18:26. 385/995). Faqīh). 8:579-80. 4:53. Wasāʾil alShīʿa. ca. no. ed. al-Muʿjam al-awsaṭ. 975/1567). 3139. 1992). 62 61 The aqīlū saying appears elsewhere in the Shīʿī ḥadīth corpus. Dāraquṭnī (d. Kāfī]). Sunan. ʿAwālī al-laʾālī. Ibrāhīm al-Ḥusaynī (Cairo: Dār al-Ḥaramayn. no. Shuʿayb al-Arnaʾūṭ and Ḥusayn Asad. 360/970). 14:256. al-Ḥākim al-Naysābūrī. 23:328 (citing Ibn Bābawayh. 5774. no. 6:468-9. 8:575. Bayhaqī (d.912 (listing the ḥudūd maxim as it has been popularized. 2001). Muḥammad ʿAbd al-ʿAzīz al-Khālidī (Beirut: Dār al-Kutub al-ʿIlmiyya. see also Abū Dāwūd al-Sijistānī. no.937 (Arabic text: taʿāfaw fī-mā baynakum qabla an taʾtūnī fa-mā balaghanī min ḥadd fa-qad wajaba). Musnad. no. Ḥasan ʿAbd al-Munʿim al-Shalabī (Beirut: Muʾassasat al-Risāla. no. Mujtabā al-Arāqī (Qum: Maṭbaʿat Sayyid al-Shuhadāʾ. 1412/1990-1). 18. ed. nos. 458/1066). 2004). ed.59 Whereas the ḥadīth versions of the ḥudūd maxim appear in Ibn Mājah and Tirmidhī. Kitāb man lā yaḥḍuruhu ʾl-faqīh. See also Ṭabarsī. trans. al-Ḥurr al-ʿĀmilī. 3:137.61 But neither he nor any other collector of canonical Shīʿī ḥadīth records the aqīlū saying. This suggests that Qummī scholars at that time did not regard it as a ḥadīth or more pointedly. 1996).60 Neither appears in Bukhārī or Muslim. ʿUmdat al-qārī. attributed to ʿAlī without an isnād (from Ibn Bābawayh’s Muqniʿ). al-Mustadrak ʿalā ʾl-Ṣaḥīḥayn (Cairo: Dār al-Ḥaramayn liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ. Ṣaḥīḥ. al-Muʿjam al-awsaṭ. nos.

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

In other words. Muḥammad Ḥallāq and ʿIzz al-Dīn Khaṭṭāb (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī. Kulaynī (d. ed. and attribute them separately to the Prophet and as if through an independent chain of transmission. in that work. with Muḥammad b.                                                                                                                                                                                                maxim during this time in Ifrīqiya and elsewhere. though without citing it as a ḥadīth and not in compound form. ʿAlī (d. Furthermore.e. Yemen: Maktabat al-Irshād. do not. 7:109. 2003). 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. 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. that chain of transmitters [Ḥusayn b. Kitāb Raʾb al-ṣadʿ. On modern Zaydīs. 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. inasmuch as we know that he copied from written Shīʿī sources for his works on law. (The other compilers of the Imāmī ḥadīth canon. On Qāḍī Nuʿmān’s religious and legal affiliations. Zayd (d. we know that the simple version of the ḥudūd maxim was circulating in the Zaydī community at a point contemporary to Qāḍī Nuʿmān. after 399/921). see Poonawala. Isḥāq al-Baghdādī (Ṣanʿāʾ. there is a more direct link between Qāḍī Nuʿmān’s version of the maxim and a version known in Zaydī circles. (Thanks are due to Najam Haider for directing me to several Zaydī sources. 460/1067). Aḥmad b. during the first Fāṭimid caliph al-Mahdī’s reign) and/or Daʿāʾim (around 349/960). always through the same chain of transmission. Ibn Bābawayh (d. and that this work appears to have been quoted extensively in Aḥmad b.. 840/1437). ʿĪsā’s Amālī. Qāḍī Nuʿmān did not do the splicing. the maxim is in a work collecting his teachings. we know that the ḥadīth was copied from a book. ʿĪsā b. Yazīd al-Murādī al-Kūfī ([Yemen]: Yūsuf b. Mukhāriq]—Jaʿfar [al-Ṣādiq]—his father [Muḥammad al-Bāqir]). because the sources informing them as well as the versions that they cited differed considerably. also as here. and “conversion” from Sunnism to Ismāʿīlī Shīʿism.w. From the chain (Muḥammad—Ḥusayn b. See also ʿAlī b. 3 (1974): 572-9. Zayd b. ʿĪsā’s Amālī. 298/911)—although rejected by later Zaydīs—appealed to it during his lifetime. see Bernard Haykel. i. 275-76 (noting that Abū Junāda al-Salūlī [Ḥuṣayn in the above chain]. 3:1390-1405 (preserving Aḥmad b. “al-Qāḍī al-Nuʿmān. as Qāḍī Nuʿmān’s contemporary. authored a work called Kitāb Jāmiʿ al-ʿilm. Amālī (also called Kitāb al-ʿUlūm). Poonawala. 413. the same one noted in our copy of Aḥmad b. with commentary). See Zayd b.. 1993). 1999). according to his grandson. “A Reconsideration of al-Qāḍī alNuʿmān’s ‘Madhhab. ʿAlī (d. 381/991-2). Instead. as here. Muntakhab (Ṣanʿāʾ: Dār al-Ḥikma al-Yamāniyya. See Hossein Modarressi. 1393. The maxim was cited by Zaydism’s eponymous school founder. 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. 126.] idraʾū ʾl-ḥudūd biʾl-shubahāt wa-aqīlū ʾl-kirām ʿatharātihim illā min ḥadd. Compare Ibn al-Murtaḍā (d. ʿĪsā’s Amālī referred to ḥadīths taken from this work).) In principle. Though it does not appear in the Musnad collecting ḥadīths attributed to Zayd. From the Amālī. 1405 (citations to the maxim. ʿAbd al-ʿAzīz b. 122/740). Tradition and Survival: A Bibliographical Survey of Early Shīʿite Literature (Oxford: Oneworld. See Muḥammad b. and particularly Shawkānī’s appropriation of Sunnī ḥadīths (as he does here with the ḥudūd maxim). As a general matter. we see where Qāḍī Nuʿmān copied his long version of the maxim. Naṣr—Khālid—Ḥuṣayn (b. While this suggests. Sulaymān alKūfī (d.a. New York: Cambridge University Press. though not as a ḥadīth). On the dating of these texts. 416. 3:1390. 297-304 (kitāb al-ḥudūd). 122/740). includes it in his ḥadīth compilation. ʿAlī al-Shawkānī’s Nayl al-awṭār. at most. 1401/1981). al-Sayyid Muḥammad al-Muʾayyad al-Ḥusnī?. that Qāḍī Nuʿmān may have been familiar with the ḥudūd maxim through those avenues. see Ismail K. 248/869). 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). as the Imām al-Hādī ilā ʾl-Ḥaqq (d. he copied from an earlier Zaydī work where the ḥadīths were already conjoined—perhaps inadvertently—and attributed to the Prophet. Kitāb Raʾb al-ṣadʿ (Beirut 1990). Naṣr—Khālid—Ḥuṣayn [b. collected and commented upon by Muḥammad b.’” Bulletin of Oriental and African Studies 37. a look at the Shīʿī sources shows where he got his extended version of it. 1990).) 56    . it was already a double-maxim. 211.e. Musnad (also called al-Majmūʿ al-fiqhī ). spliced together and attributed to the Prophet: qāla Rasūl Allāh [s. 2003). But this was likely not the case. Manṣūr b. and Ṣanʿānī. 329/941) and Ṭūsī (d. Mukhāriq)]. between 297/909 and 322/934. eds. The Imāmīs of course have it.” 121. Ismāʿīl al-Ṣanʿānī. Revival and Reform in Islam: The Legacy of Muḥammad al-Shawkānī (Cambridge.

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

dhilla. As with the ḥudūd-avoidance maxim. there are many versions of the aqīlū saying. nos. 12. 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. 58    . 71 70 The version with the ḥudūd exception appears more widespread. as do Ibn ʿAdī and Qāḍī Nuʿmān and most others who quote the ḥudūd maxim in addition to the aqīlū saying. dhawū ʾl-sakhāʾ. or ihtabalū. For such serious crimes and moral offenses.. as follows: (1) the term used for “overlook” is variously tajāwazū. dhawū ʾl-hayaʾāt or hayʾa. Khulāṣat al-athar fī aʿyān al-qarn al-hādī ʿashar (Beirut: Maktabat Khayyāṭ. Dāraquṭnī. Ibn Ḥanbal includes it. see generally Louise Marlow. note 60.975-84. aqīlū. ajīzū. There are three other differences in terminology. the ḥudūd exception emphasizes that those of high status are subject to punishment like anyone else. Abū Dāwūd. The second set of terms (kirām. loosely translating as “those of high station”) is perhaps most interesting. Hierarchy and Egalitarianism in Islamic Thought (Cambridge. dhawū ʾl-hayaʾāt. zallātihim. Ṭabarānī. and Ibn ʿAdī only have the version with the ḥudūd exception. Bayhaqī. See above. appear in Nasāʾī and Ibn Rāhawayh. with and without the ḥudūd exception. [1966]). For an excellent discussion of class distinctions in Islamic history (through the 8th/14th century). Worth noting is that. 12. these versions with the ḥudūd exception tend toward ḥudūd enforcement rather than ḥudūd avoidance. dhū ʾl-murūʾa/dhawū ʾl-murūʾāt. but he rejected the notion that his act had a more general application.” 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. Ibn Ḥanbal acknowledged the report that the Prophet avoided a ḥadd punishment in at least one instance. While both the ḥudūd maxim                                                                   69 As we saw above. 1997).71 As such. Both versions.70 The relevant difference among them is the occasional inclusion or exclusion of a “ḥudūd exception. (2) the term used to refer to those of high status is alternatively al-kirām. Kanz al-ʿummāl.whether ḥudūd punishments ever could or should be avoided. As such. NY: Cambridge University Press. as it raises questions about just which class of people the maxim is designed to encompass. Faḍl Allāh al-Muḥibbī. (3) the terms used for “faults” or “misdemeanors” include ʿatharātihim. he seemed to have restricted the scope of the practice. and even dhawū ʾl-buyūt (as in Muḥammad Amīn b. as represented in one of the ḥadīth formulations of the maxim of which Ibn Ḥanbal was aware. 4:422—though this author or the teacher who related it to him apparently copied or paraphrased the term incorrectly).987-88. etc. Ibn Ḥanbal. see al-Muttaqī alHindī.69 But he supports a particular version of the aqīlū saying that is at odds with the lenient one cited by Ibn Rāhawayh. For a list of several versions. while Ibn Rāhawayh does not mention the ḥudūd exception.

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

Ibn Mājah. At the same time. and in calling attention to the legalistic tenor of the shubahāt version. 60    .outlining this social context is not to be denied. See Fierro. her intervention may explain why the standard version becomes central in the later juristic literature. 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). the vague phrase “as much as you can” preceded the more specific phrase “doubts and ambiguities (shubahāt). More importantly. and its more exacting potential may indeed explain why jurists picked up and standardized the shubahāt version over the other as. Indeed. jurists graft a prophetic attribution onto the standard version in the later period. as we will see. they elaborated the concept and contours of shubha. as I hope to have demonstrated here. as I argue elsewhere. See below. She posits that the latter preceded the former. of the two forms she has highlighted. the elaboration of shubha comes later: jurists who invoke it do not dress it with any marked precision until the fourth and fifth centuries. and.” such as Ibn Ḥanbal. if not necessarily to support her hypothesis. 121. notes 77. She argues that. Yet it is questionable whether this trend can support her associated argument about dating. “When Lawful Violence Meets Doubt. arguably (at least for the likes of Ibn Ḥazm).” The latter replaced the former.”74 The distinction made by Fierro is an important one. both versions are contemporaneous to one another. both ḥadīth scholars and. she argues.                                                                   74 Fierro is suggesting that shubahāt is more of a technical term and thus more limited than mā ʾstaṭaʿtum.” 227. which emerged as a response to the “pious opposition. gradually. 236 (noting traditions forbidding Muslims from interceding on behalf of one’s [high-status] peers). who were concerned that the law be applied in an egalitarian way. 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. and Tirmidhī (and later Ibn Ḥazm). This view of the technical nature of the term shubahāt bears out in the later sources. signaling a preference for the more legalistic phrase. In noting the differences between the two forms of the maxim. but circulate in different scholarly circles. 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).

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

through the splicing together of these two different sayings circulating in two different regions. the principle that the elite were not exempt from criminal liability. as indicated by Ibn Ḥanbal’s reference to both. the combined version attributed to Ibn ʿAdī and Qāḍī Nuʿmān was not. but makes clear that their privilege does not exempt them from ḥudūd liability. It came later. It may be that he and his cohorts emphasized the ḥudūd exception precisely to curb elite privilege in applications of ḥudūd laws. The aqīlū saying was attached to the ḥudūd maxim after the principle of mandatory ḥudūd enforcement across-the-board had won out. the widespread aqīlū saying was disregarded amongst jurists in the ḥudūd context at that time. even if the two sayings were known in the same region at some point at least in the mid-3rd/9th century. Additionally. 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. at least not primarily in order to favor the upper classes. and it certainly was not appended to the ḥudūd maxim as a single saying in the ḥadīth context. Remember that in his rebuke of 62    . The stories about Zufar and Abū Yūsuf are unavailing. 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. In sum. 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. not subvert. whereas the “arbitrary” and “objective” versions of the ḥudūd maxim circulated side-by-side in the early period (through the 3rd/9th century). the addition carried a ḥudūd exception designed to underscore.old as the ḥudūd maxim. but emphatically not with it.

. non-elite new converts who lacked high social status). 63    . Mālikīs. which does adduce a prophetic attribution. 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. rather.75 All this notwithstanding. To be sure. Shāfiʿīs. In practice. The story about Abū Yūsuf. 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. it is not clear that Fierro is suggesting that the maxims were intended to benefit the elite exclusively. notes 37-40 (indicating some instances where the maxim was used to favor the uneducated. She well describes the social context that no doubt rankled jurists like Ibn Ḥanbal and Ibn Ḥazm.g. but more often objecting to its underuse. the cases cited above. who wanted more principled applications of the law based on authentic traditions. she emphasizes that the maxim likely emerged from and was easily abused by the elite in practice. The theory was one of consistent ḥudūd avoidance following authoritative practices                                                                   75 E. Moreover.Zufar. as the many examples Fierro adduces show. 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. it is doubtless true—at least in the literary memory of the Muslim historians—that some jurists used the maxim to benefit the elite. 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. But such preferential treatments likely incensed ḥudūd maxim proponents—amongst the Ḥanafīs. and opposed the maxim on grounds of authenticity and coherence. comes from a 4th century source—by which time the maxim had come to be regarded as a prophetic ḥadīth. as Fierro shows. ʿAbd al-Wāḥid does not claim that Zufar attributed the maxim to the Prophet. criminal law application was often at odds with theory.

For example. Aḥkām al-Qurʾān. Sālim Muṣṭafā al-Badrī (Beirut: Dār al-Kutub al-ʿIlmiyya. 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. V. Muḥammad b. Aḥmad b.from the earliest period. See Ibn Rushd al-Jadd (d. 520/1122). 1999). but the possibility of interpolation cannot be ruled out. as both a precedential ḥadīth-text and a central maxim of Islamic criminal law. subsequently. Mālik’s student ʿAbd al-Raḥmān b. Ḥanafī. Muḥammad Ḥajjī (Beirut: Dār al-Gharb al-Islamī.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. around the same time. 238/853) attributed the maxim to the Prophet as well. as enshrined in the ḥudūd maxim. 370/981). reported a case in which a man suffering from extreme hunger sold his wife to another man for funds. 186-91. the Qayrawānī biographer Khushanī records an incident where the Cordoban Mālikī jurist ʿAbd al-Mālik b. but where jurists accommodated it generally. ʿAbd al-ʿAzīz alʿUtbī (d. ed. al-Ḥārith al-Khushanī (d.” Attempts to flatten class distinctions in prosecutions thus later appeared in the form of the modified aqīlū saying appended to the original ḥudūd maxim. Mālikī. As shown below. Akhbār al-fuqahāʾ waʾl-muḥaddithīn. and this led to exaggerated attempts to avoid criminal sanctions in the laws on the books through a robust “jurisprudence of doubt. Akhbār. From the 4th century on. In society. and seems likely. Ḥabīb (d. 255/869). Juristic Proponents The ḥudūd maxim appears in the earliest Islamic legal texts. 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. they resisted it in criminal law. 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. al-Qāsim reportedly invoked the maxim as a ḥadīth to avoid the punishment. The Ḥudūd Maxim amongst Later Jurists A. Shāfiʿī. ed. 190. 1984). as jurists cite and apply it in considerations of criminal violations. See Khushanī. al-Bayān waʾl-taḥṣīl. 361/971 or 371/981). The maxim appears elsewhere in sources that suggest even earlier juristic attributions to the Prophet. 3:330. See Muḥammad b. Another prominent Mālikī jurist of Cordoba. 16:324 (quoting the ʿUtbiyya: qad jāʾa ʾl-ḥadīth idraʾū ʾl-ḥudūd biʾl64    . and Imāmī Shīʿī jurists developed the doctrine and continued to apply the maxim widely. hierarchy took hold in criminal and other areas of law early on.

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

any ambiguity by operation of the ḥudūd maxim announced by the Prophet. Aḥmad Mukhtār ʿUthmān ([Cairo]: Zakariyyā̄ ʿAlī Yūsuf. saying that “jurists of all regions have come to a consensus that [the maxim applies]. ed. Fakhr al-Dīn al-Zaylaʿī.. 1:147 (attributing the maxim to the Prophet). marriage without a guardian (permitted by Ḥanafīs). Aḥmad Shams al-Dīn (Beirut: Dār al-Kutub al-ʿIlmiyya. 142 (citing the maxim—here: al-ḥudūd tudraʾ biʾl-shubahāt—as a ḥadīth in collections of Ibn ʿAdī. Muḥammad al-Bābartī. ed. 1996). the matter had been settled amongst the jurists.”80 Similarly. E. Alexandria: Dār al-Salām. and others). 1893?). 167. ed.p. Abū ʾl-Ḥusayn ʿAbd al-Majīd al-Murādzahī al-Khāshī (Zāhidān. 66    . see also Shams al-Aʾimma al-Sarakhsī (d. Naṣb al-rāya: takhrīj aḥādīth al-Hidāya. The basis for avoiding the ḥadd in such cases. Aḥmad al-Nasafī.                                                                   78 Abū ʾl-Ḥusayn al-Qudūrī. 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. ed. Abū Bakr al-Kāsānī. Burhān al-Dīn al-Marghīnānī. see Jawād al-Tabrīzī. Fatḥ al-qadīr (Beirut: Dār Ṣādir.79 By the time of Ibn Nujaym (d. 1973). ed. 2007). Jamal al-Dīn al-Zaylaʿī. in Akmal al-Dīn Muḥammad b. Ghazālī explains. 11:5897 (attributing the standard formula to the Prophet: (idraʾū ʾl-ḥudūd biʾl-shubahāt). ʿAbd Allāh b. 80 79 Ibn Nujaym. He announces the ḥudūd maxim as an authentic prophetic ḥadīth as agreed-upon and accepted by the entire Muslim community. 290. Ashbāh. For a similar view in the Shīʿī context. Ibn Mājah. 483/1090). al-ʿInāya fī sharḥ al-Hidāya (Beirut: Dār al-Kutub al-ʿIlmiyya. 970/1563). and marriage without witnesses (permitted by Mālikīs). Muḥammad Aḥmad al-Sirāj and ʿAlī Jumʿa Muḥammad (Cairo. Uṣūl. with many problematic links in the chains in the ḥadīth collections. Iran: Muʾassasat Usāma. ed. Abū Ḥāmid al-Ghazālī (d. 1968). Ṣirāṭ al-najāt (Qum: Dār al-Ṣadīqa al-Shahīda. 1:563-64. in the Shāfiʿī context. Abū ʾl-Wafāʾ al-Afghānī (Beirut: Dār al-Maʿrifa. 2004). Hidāya. Badāʾiʿ al-ṣanāʾiʿ. ed. the Sunnī ḥadīth scholar ʿAbd Allāh b. says that the ḥadīth in its popular form (idraʾū ʾl-ḥudūd biʾl-shubahāt) is inauthentic or anomalous (gharīb). 5:5-15. Tabyīn al-ḥaqāʾiq. Sarakhsī. 9:61-66. who authored the central work on Ḥanafī legal maxims. 5:249-52. 2:285.78 He and other Ḥanafīs uniformly apply the maxim in several cases of ambiguity when they do find it. 3:566-68. Ibn Nujaym. 3:333. Examples of these doubtful marriages include temporary marriage (permitted in the Sunnī Meccan school and by the Shīʿa). Mabsūṭ. Kanz al-daqāʾiq. al-Baḥr al-rāʾiq sharḥ Kanz al-daqāʾiq ([Cairo]: n. 1422/[20012]). But some scholars notice that the ḥadīth was problematic and likely inauthentic. 2003). 4:148-52. Ibn al-Humām. Tirmidhī. 1:551. Tajrīd. For example. Abū ʿAbd Allāh Muḥammad Ḥasan Ismāʿīl al-Shāfiʿī (Beirut: Dār al-Kutub alʿIlmiyya 2001).g. 2000). 9:4150-58. Aḥmad ʿIzzū ʿInāya (Beirut: Dār al-Kutub al-ʿIlmiyya. Yūsuf Zaylaʿī. [1972?])..

” and the juristic dispute suffices to create a ḥadd-averting doubt. Ibn Ḥajar al-Haytamī. 254 (attributing it to the Prophet). 2nd ed. 2007). idem. idem. 11:144-50 (citing the ḥudūd maxim as a prophetic ḥadīth. and as a khabar ṣaḥīḥ on pp. idem. and even before. 385. Tuḥfat almuḥtāj sharḥ al-Minhāj. ʿAbd al-Salām. Suyūṭī’s discussion occurs in a chapter entitled al-ḥudūd tasquṭ [instead of tudraʾ] biʾl-shubahāt. who authored a core work on Shāfiʿī legal maxims. on p.. Māwardī. the fragment of the work attributed to Ibn ʿAdī. Sayf al-Dīn Abū Bakr al-Qaffāl al-Shāshī. Aḥmad Maḥmūd Ibrāhīm and Muḥammad Muḥammad Tāmir ([Cairo?]: Dār al-Salām. 4:118-21 (citing the ḥudūd maxim as a prophetic ḥadīth. E. 8:7-15. 1997). He is not. ed. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya. Abū Isḥāq al-Shīrāzī.81 Other Shāfiʿīs uniformly apply the maxim in like cases involving other types of doubt or ambiguity. 11920). ed. al-Tabṣira fī uṣūl al-fiqh. he cites the two canonical collections that include this maxim (Ibn Mājah. Aḥmad b. e. (Damascus: Dār al-Qalam. Tirmidhī). 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”). al-ʿAzīz sharḥ al-Wajīz. and thus does not present it as a ḥadīth or discuss whether he deems it to be one. ed. however. Muḥammad Najīb al-Muṭīʿī ([Cairo]: Maktaba alʿAlamiyya biʾl-Fajjāla. see also idem. 911/1505).is the “[prophetic] ḥadīth:” “avoid criminal punishments in cases of doubt. ed. for support. ʿAbd Allāh Maḥmūd Muḥammad ʿUmar (Beirut: Dār al-Kutub al-ʿIlmiyya. ed.83 the matter had been settled as much for Shāfiʿīs as it had for Ḥanafīs. 1:382. 1971). 2:279-80. 6:443-44 (quoting the standard formula: idraʾū ʾl-ḥudūd biʾl-shubahāt). 84 82 Suyūṭī. on p. ʿAlī Muḥammad Muʿawwaḍ and ʿĀdil Aḥmad ʿAbd al-Mawjūd (Beirut: Dār al-Kutub al-ʿIlmiyya. 1974). 1980). al-Wasīṭ fī ʾl-madhhab.. 18:375. 2:167. Muḥammad al-Khaṭīb alShirbīnī. concerned with the origins of the maxim. Muḥyī ʾl-Din al-Nawawī. ed.82 By the time of Suyūṭī (d. ed. Ibrāhīm b. Ashbāh. ed. ʿAbd al-ʿAzīz al-Ḥaddād (Beirut: Dār al-Bashāʾir. Mecca: Dār al-Bāz. and other later collections. 1997). al-Mustaṣfā. Rawḍat al-ṭālibīn.. ed. amongst other principles ranging from the general objectives of the law (maqāṣid) and rules of propriety (adab) to legal maxims proper. 1:485 (indicating that the Prophet said both idraʾū ʾl-ḥudūd . 236-38 (citing the standard formula and listing various applications of the maxim).. al-Ḥāshiya ʿalā Sharḥ Ibn Qāsim al-Ghazzī (Beirut: Dār al-Maʿārif. al-Aḥkām al-sulṭāniyya. al-Majmūʿ sharḥ al-Muhadhdhab. 145). See al-ʿIzz b. 2000).. Suyūṭī explains. Muḥammad Ḥasan Haytū (Beirut: Dār al-Fikr. 1988). 5:442-45. biʾl-shubahāt and . e. Yāsīn Aḥmad Ibrāhīm Darādikah (Amman: Maktabat al-Risāla al-Ḥadītha. had commanded ḥudūd avoidance in instances of doubt or ambiguity.. Minhāj al-ṭālibīn. 2001). ed. Mughnī al-muḥtāj ilā maʿrifat maʿānī alfāẓ al-Minhāj. Abū ʾl-Qāsim al-Rāfiʿī. Ḥilyat al-ʿulamāʾ fī maʿrifat madhāhib al-fuqahāʾ. mā ʾstaṭaʿtum).. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya. 7:306-13. 2:383-90. The Prophet. 1992). 3:206.84                                                                   81 Abū Ḥāmid al-Ghazālī. 1994). Cf. 118.g. al-Qawāʿid al-kubrā. Nazīh Kamāl Ḥammād and ʿUthmān Jumuʿa Ḍamīriyya. Muḥammad al-Bājūrī. Wajīz. 67    .g.g.

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

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). Sarāʾir. 4:314-15 69    . and instances where a defendant repents before a case is brought before the courts. cf. it is a concise listing of fiqh rulings. Ibn Idrīs al-Ḥillī (d. For example.” Rather. 598/1201-2).. as a soldier. Muḥammad Riḍā al-Muẓaffar. 787.92 and later jurists articulate the range of Shīʿī shubha as a part of the ḥudūd maxim’s central place in Shīʿī criminal law. 1416/[1996]).. shubha mawḍūʿiyya]). as in rape. Fāris alḤassūn (Qum: Muʾassasat al-Nashr al-Islāmiyya. Compare al-Waḥīd al-Bihbahānī. Qawāʿid al-aḥkām (Qum: Muʾassasat al-Nashr al-Islāmī al-Tābiʿa liJamāʿat al-Mudarrisīn bi-Qum.or ambiguity. see also 787 (citing a version of the maxim twice). 3:432. Despite its title. 446 (two instances).’”90 And the principle is applied elsewhere. 598/1202) later spells out that the maxim applies simply because the Prophet commanded it. al-Rasāʾil al-uṣūliyya (Qum: Muʾassasat al-ʿAllāma al-Mujaddid al-Waḥīd al-Bihbahānī. which in other contexts means “legal maxims. 716 (three instances). he should not be punished for theft because. 445 (two instances). 2:170-92.93                                                                   89 Mufīd. At base.g.. esp. Al-ʿAllāma al-Ḥillī (d. 2:708. adduced to require canceling ḥadd liability for alleged cases of theft). 91 90 See. 1342/[1963]). ibid. Abū ʾl-Ṣalāḥ al-Ḥalabī. al-Muqniʿa (Qum: Muʾassasat al-Nashr al-Islāmī. universally agreed upon. ibid. 406 (recognized twice). Kitāb al-sarāʾir (Qum: Muʾassasat al-Nashr al-Islāmī. For further detail. ‘avoid ḥudūd punishments in cases of doubt or ambiguity. 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).. 3:433-4. see ibid. He applies the rule to women (victims) accused on zinā in instances of alleged coercion. 2nd ed.. 2:725.89 Ibn Idrīs (d. 787. 1423/[2002?]). Kāfī.91 Al-ʿAllāma al-Ḥillī notes several types of ḥadd-averting doubt in one of his treatises. and its title more accurately relates a more general sense of “principles of Islamic legal rulings. Abū Jaʿfar al-Ṭūsī. Irshād al-adhhān ilā aḥkām al-aymān. 1413-1419/[1992-1999]). al-Raḥmatī al-Arākī. see 3:428. ed. 1410/[1989-90]). shubha ḥukmiyya] and shubha fī ṭarīq al-ḥukm [i. 3:485 (qawl al-rasūl ʿalayhi al-salām al-mujmaʿ ʿalayhi idraʾū ʾl-ḥudūd biʾl-shubahāt. 1410/[1990]). 2:746. 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. 1410/[1989-90]). e. ed. Ibn Idrīs. 484 (two instances). al-Nihāya fī mujarrad al-fiqh waʾl-fatāwā ([Tehran]: Chāpkhāna-yi Dānishgāh. 711. Uṣūl al-fiqh. 413 (same).” this is not a treatise on legal maxims proper.e. 789 (al-ʿuqūd al-fāsida tudriʾ al-ḥadd … biʾl-shubahāt).. if a soldier takes a portion of war spoils before they have been divided. 726/1325). in addition to citations above. 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. (Qum: Muʾassasat al-Nashr al-Islāmī. with brief explanations. 450. see idem. ibid. 457 (three instances). 3:521-23. 403-04 (describing categories of shubha fī nafs al-ḥukm [i.e. there can be no punishment then because of “the statement of the Prophet. 789.

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

Isḥāq did agree that the act was prohibited. because “ḥudūd are averted in cases of doubt. He repeats this here and in other works. al-Kāfī fī fiqh Ibn Ḥanbal. Maḥmūd et al.”95 More tellingly. 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. that ḥudūd tudraʾ biʾl-shubahāt).” Thus. Zuhayr al-Shāwīsh (Beirut: al-Maktab al-Islāmī.                                                                   95 See Isḥāq b. ed. 98 See Ibn Qudāma.97 and sometimes citing it to require avoidance of ḥudūd punishments in certain cases. 275/888f). that “you and your property belong to your father.. 96 97 Ibn Qudāma. 4:179. 2004). ed.g.” 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. 2:265... 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. 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. 1979). Masāʾil al-Imām Aḥmad b. Ibrāhīm al-Naysābūrī (d. sometimes referring to the maxim as a “foundational principle” of criminal law. Abū ʾl-Ḥusayn Khālid b. based on a prophetic ḥadīth that “even small amounts of drinks that are intoxicating in abundance are ḥarām. E.”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.e. the erudite scholar Ibn Qudāma (d.98 but never—so far as I can tell—on the assumption or assertion that it is prophetic. Mughnī. and because the greatest shubha is where a man takes property in which the law gives him a property interest 71    . 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). Ḥanbal.does not get drunk. Ibid. Ibn Qudāma’s invocation of the maxim without a prophetic attribution is striking. (Riyadh: Dār al-Hijra.

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

that semblance is a ḥadd-averting shubha under this maxim. Accordingly. Ibn al-Qayyim criticizes the Ḥanafīs and other jurists for applying the rule willy-nilly at the first sign of potential doubt. Under this category of shubha. 1:314-15. which no one in their right mind would have believed—absent the overuse of the maxim—was actually a ḥadd-averting ambiguity. which would exculpate the offender in like cases. 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. 3:15 (referring to such instances as maʿa ḍarūrat al-muḥtāj). Sarakhsī (d. 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. 73    . 9:65 (quoting Hidāya). e. he is ḥadd-eligible if she turns out not to be... 483/1090). repeat thefts. In sharp contrast with the majority view. 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). Qudūrī (d.106 Even if one accepts that the ḥudūd maxim is prophetic and warrants application on that basis. See. 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. destruction rather than outright theft of an item kept in a secure location.105 Using the language of ambiguity and doubt. 11:5899. 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). Tajrīd.g. what leads jurists to presume that the existence of a per se invalid marriage                                                                   105 Ibid. some Ḥanafīs hold that. 428/1037). even if knowingly—the existence of the contract creates the semblance of legality.during a time of famine or to anyone otherwise in need of food. However. Rhetorically. even if defective from the onset—such as marrying a sibling. 106 Ibid.. whenever a legal act is performed on the basis of a contract.

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

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

note 82. the maxim itself runs counter to the weight of all recognized Islamic legal authority. the attestations of the practice in early Islamic criminal law sufficed to provide a basis for later Islamic criminal law. a ḥadīth about a member of the early Medinan community. In other words. Ibrāhīm al-Nakhaʿī was born after ʿUmar died!115 Moreover. for him. Amongst the Shīʿa. is unrevealing about how to approach criminal law. 76    . reveals that it is patently inauthentic. 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. Muḥallā. Akhbārīs can be added in certain cases. notes that His laws (ḥudūd) are not to be transgressed. (Though I know of no Akhbārī who has acknowledged that the maxim is not prophetic.) 115 116 See above. 8:252. Ibn Ḥazm says. For example. who confessed to committing zinā. calling it the mere speculation of the maxim-proponents. and thus non-normative for law. merely statements of Companions sometimes attributed to the Prophet. but whom the Prophet turned away four separate times before finally ruling that the ḥadd sanction was due. this includes some Ḥanbalīs and Ẓāhirīs. 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. 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.116 Second. Ibn Ḥazm. And for them. Māʿiz. The Lawgiver announces certain legal prescriptions and proscriptions. and imposes                                                                                                                                                                                                 directives.Purported maxims-as-ḥadīths are. 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. Amongst the Sunnīs. which appears in ʿAbd al-Razzāq’s collection on the authority of ʿUmar (as reported by Ibrāhīm alNakhaʿī). The law says that ḥudūd sanctions are mandatory when someone has confessed to a crime. not the law. but Ibn Ḥazm rejects such post-hoc explanation. Thus. a look at the most-quoted form of the maxim.

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

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

which reveal the simultaneity of the two versions and a late adoption of a spliced version highlighting issues of social class. Her analysis is a surprising reversal of a Schachtian conclusion (had he distinguished between the two types as she did). most tried to refine and strengthen it for these purposes. and discretionary punishments). 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. Too. 79    . laws of retaliation. In fact. 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. political authorities exercised extremely wide discretion over criminal matters ostensibly within their enforcement jurisdiction (including ḥudūd sanctions. which views anonymous sayings like the juristic form of the maxim as older than the isnād-clad ḥadīth forms.ḥadīth form of the maxim was in fact circulating at the time of Ibrāhīm al-Nakhaʿī. Ultimately. she reasons. 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. For these reasons. Politics and social status played a role in applications of the maxim and other areas of law. The popularized juristic version must have been a later modification of the ḥadīth-versions. to which jurists readily extended the ḥudūd maxim. it could then be used more legitimately by jurists who tended to privilege (and benefit from) social status in their judgments. While some dispensed with the maxim altogether. these views are not supported by the sources.

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. Their answer to questions of doubt was otherwise. 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. 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.121                                                                   121 Over time. 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. including juristic views applying the ḥudūd maxim as well as those opposing it in favor of other strategies. whose “founders” had cited and employed the maxims themselves (though not with prophetic attributions). As a result. It has become a super-precedent. and Shīʿī jurists.” The ḥudūd maxim is so securely entrenched that it seems a necessary feature of law. 80    . often right alongside some five “universal maxims.As the law developed. Shāfiʿī. 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. The ḥudūd maxim (idraʾū ʾl-ḥudūd biʾl-shubahāt) became a prophetic ḥadīth for Ḥanafī. 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. Mālikī. and must therefore be prophetic.

al-Musnad al-jāmiʿ. For an English translation. 279/892)125 (1) Thawrī—Ḥammād—Ibrāhīm [al-Nakhaʿī]— [anonymous] (2) Wakīʿ [b.743. 2545 (bāb satr ʿalā ʾl-muʾmin wa-dafʿ al-ḥudūd biʾl-shubahāt). Zuhayr al-Shāwīsh (Beirut: al-Maktab al-Islāmī. Irwāʾ al-ghalīl fī takhrīj aḥādīth Manār al-sabīl (Beirut: al-Maktab al-Islāmī.698 (variations in Arabic text: fa-idhā wajadtum liʾlMuslim instead of fa-in kāna lah. 12. Ibn Abī Shayba. no. no. Muṣannaf. ʿAbd Allāh al-Jumʿa (Riyadh: Maktabat al-Rushd. 28.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. and trans.945. 1988).. Yazeed et al. 16. Tirmidhī points out that the first chain is likely inauthentic because it alone attributes the saying to the Prophet 81    125 124 123 . Bashshār ʿAwwād Maʿrūf et al. idem. al-Jarrāḥ—Wakīʿ—Ibrāhīm b. 1979). Sunan. no. Tirmidhī.: 1965-1969).p. Ḥadīth critics concluded that this report was extremely weak. Ibrāhīm al-Laḥīdān and Ḥamad b.) ʿAbd al-Razzāq (d. Muṣannaf (1972). 13. al-Aswad al-Baṣrī— Muḥammad [b. 1999). ed. 2:356. 9:468. Abū Yaʿlā. then release him. fa-innah in yukhṭiʾ ḥākim min ḥukkām al-muslimīn instead of fa-inna ʾl-imām). 18. 9:360. Kuwait: Sharikat al-Muttaḥida. no.] Rabīʿa—Yazīd b. 2004). with accompanying footnotes. 235/849)124 Tirmidhī (d. 554.” (Idfaʿū ʾl-ḥudūd mā wajadtum lah madfaʿan. Musnad. see Muhammad b. Abī Saʿīd—Abū Hurayra—Muḥammad Version 2 “Avoid ḥudūd punishments involving Muslims to the extent possible. 5:112-13. eds.972 (variations in Arabic text: ʿibād Allāh instead of muslimīn). Mizzī.” (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. Ḍaʿīf Ibn Mājah. 17:344. 1998). 10:166. 2:41-42. ed. 11:494. 1424. no. 1993-1996). fa-ʾdraʾ ʿanh instead of fa-khallū sabīlah. al-Jarrāḥ]—Yazīd b. Ziyād al-Baṣrī— Zuhrī—ʿUrwa—ʿĀʾisha (3) Abū ʿAmr ʿAbd al-Raḥmān b. See. Sunan (n. ʿAbd al-Razzāq.. Faḍl’s narrations were rejected. 303/915)122 ʿAbd Allāh b. no.. Muḥammad b. al-Musnad al-jāmiʿ (Beirut: Dār al-Jīl. Tuḥfat al-ashrāf bi-maʿrifat al-aṭrāf (Beirut: Dār al-Gharb al-Islāmī. no. as it is better that the Imām make a mistake in pardoning than in punishing. 6618. English Translation of Sunan Ibn Mājah (Riyadh: Dār al-Salām. [al-] Faḍl—Saʿīd b. ed. as Ibrāhīm b. no. 4:161. ed. Maḥmūd Muḥammad Maḥmūd Ḥasan Naṣṣār (Beirut: Dār al-Kutub al-ʿIlmiyya. Ziyād alDimashqī—Zuhrī—ʿUrwa—ʿĀʾisha—Muḥammad                                                                   122 Ibn Mājah. if there is an exculpating cause for [the accused].) Ibn Mājah (d.. 211/826)123 Ibn Abī Shayba (d. 2007). Muḥammad Nāṣir al-Dīn al-Albānī.799.

as Tirmidhī and Dāraquṭnī concluded. Ziyād al-Shāmī— Zuhrī—ʿUrwa—ʿĀʾisha—Muḥammad Bayhaqī (d. likely by way of Yazīd b. Sunan. Rashīd—Muḥammad b.799.. Finally. to be inauthentic because of Yazīd b. which is also traced back to the Prophet. Ziyād the Kufan. no. Jarrāḥ. Hārūn al-ʿIjlī—Muḥammad b.(4) Hannād—Wakīʿ—Yazīd b. 5:112 (noting attributions also to Abū Hurayra [as in Ibn Mājah] and ʿAbd Allāh b. as in al-Musnad al-jāmiʿ. Abī Razma—al-Faḍl b. no. 16.e. Note that Muḥammad Rabīʿa in this edition should be Muḥammad b. 2004). innakum and appropriate verbs instead of imām. 385/995)126 (5) ʿAbd Allāh b. ʿAbd al-ʿAzīz— Dāwūd b. because of Rishdīn’s unreliability (i. nos. Mūsā and [his father] Mūsā—Yazīd b. based on Bukhārī’s assessment that this Yazīd’s ḥadīths are to be rejected (i. but to the Companion and Kufan jurist Ibn Masʿūd (mawqūf[an]). a matter which requires further study. 25:196-99. and the first and second parts of the maxim transposed). 2:41-42. Ziyād in this chain is Kufan or Damascene (Shāmī). Note that this edition clarifies that what the 1966 edition presents as a single chain at 3:84 is in fact two chains. Dāraquṭnī has a problem with Yazīd b.. al-ʿĀṣ]. Fierro has suggested that this was a deliberate substitution. 17. He deems the second chain (which he suggests goes back only to ʿĀʾisha) to be more sound (aṣaḥḥ). Ziyād from Damascus. Yaʿqūb—Abū Jaʿfar Aḥmad b.— [ʿĀʾisha] Dāraquṭnī (d.062 (variations in Arabic text from the second version [chain #10]: ʿan al-muslimīn omitted. Bayhaqī traces that chain back to ʿĀʾisha via Yazīd b. Ziyād—[Zuhrī]—[ʿUrwa]—ʿĀʾisha                                                                                                                                                                                                 and does so through Yazīd b. Rabīʿa—Yazīd b. Ziyād [al-Shāmī?]—Zuhrī—ʿUrwa. whom he deems weak. ʿAbd al-ʿAzīz b. Ḥammād—al-Ḥasan b. who was unreliable (ḍaʿīf al-ḥadīth). Ziyād—Zuhrī—ʿUrwa— ʿĀʾisha—Muḥammad (8) Wakīʿ—Yazīd b.e.057-58 (variations in Arabic text for first version (chain #s 7-9): same as Dāraquṭnī’s version above. as this was a known saying amongst them. fa-in wajadtum liʾl-muslim makhrajan instead of fa-in kāna lah makhrajan). Muḥammad b. Ziyād al-Dimashqī. it was transmitted by the reliable Wakīʿ b. 17. as noted more extensively above.. This version of the report is not attributed to the Prophet.. Bayhaqī. no. 5210). 458/1066)127 (7) Abū ʾl-Ḥasan ʿAlī Shaqīr b. Rabīʿa—Yazīd b. ʿĪsā b. darʾ al-ḥadd repeated twice. A Companion-attribution is to be expected. Note that Tirmidhī reports that this chain contains and stops with Yazīd b. Sunan. ʿArafa— Muḥammad b. 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. Like Tirmidhī and Dāraquṭnī. Bayhaqī has no comment. Ziyād [al-Kūfī]. ʿAmr [b. Ziyād [al-Kūfī?]—. who is preferred and more reliable (aqdam wa-athbat) than the Damascene Yazīd. 4:62-63. Like Tirmidhī. the Kufan paternal cousin of Wakīʿ (see Mizzī. Sunan (Beirut: Muʾassasat al-Risāla. that he is matrūk [al-ḥadīth]). Rabīʿa. 3097 (variations in Arabic text: transposition of mā ʾstaṭaʿtum and ʿan al-Muslimīn. that he is munkar al-ḥadīth) and Nasāʾī’s similar conclusion (i. 8:414. 82    127 126 . Tirmidhī. apparently accepting the attribution of the saying to Ibn Masʿūd through Ibrāhīm al-Nakhaʿī. Sunan. Bayhaqī’s editor says that he is Damascene.. The more sound chain (aqrab ilā ʾl-ṣawāb) then is that of Wakīʿ (chain #4). 8:413. There is some confusion as to whether the Yazīd b. Ziyād’s unreliability (fīh ḍaʿf). Tahdhīb alkamāl. He also found weak the chain reported by Rishdīn (chain #9). but Tirmidhī was aware of the difference and said that he was Kufan. Dāraquṭnī. with the addition of lah after fa-inna ʾl-imām in yukhṭiʾ fī ʾl-ʿafw khayr).e. without complete chains). that he is ḍaʿīf). Ibid. Ziyād al-Shāmī—Zuhrī—ʿUrwa—ʿĀʾisha— Muḥammad (6) Ibrāhīm b. Bayhaqī found the chain ending in ʿĀʾisha (chain #8). no. see also Bayhaqī. note 18.

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

which is attributed to Zuhrī. 485/1066)136 (1) Hushaym—Manṣūr—al-Ḥārith—Ibrāhīm [alNakhaʿī]—[. Hāshim—Wakīʿ—Sufyān—ʿĀṣim [b. Shuʿayb—his father [= Shuʿayb b. which ends in a Companion. 235/849)135 Bayhaqī (d. See Bayhaqī.963. He does not comment on the authenticity of the report. no. 9:360. but with slightly different language. Sunan..064 (transposing jald and qatl). 135 136 Bayhaqī has a similar version.. Bahdala]—Abū Wāʾil—ʿAbd Allāh [b. Bayhaqī has no critical comments. Muṣannaf. 458/1066)133 (1) Wakīʿ—Sufyān—ʿĀṣim—Abū Wāʾil—ʿAbd Allāh [b. Jabal). and ʿUqba b. 17. 235/849)132 Bayhaqī (d. Ibid.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). Masʿūd] (2) Abū ʿAbd Allāh al-Ḥāfiẓ—Abū ʾl-Walīd al-Faqīh— Muḥammad b. Masʿūd.” (Idfaʿū ʾl-ḥudūd li-kull shubha. as he was an adult 84    . 28.967 (or bi-kull shubha.968. Zahīr [or Zuhayr]—ʿAbd Allāh b. There is likely a link missing in the chain to ʿUmar.) Ibn Abī Shayba (d.” (La-an uʿaṭṭil al-ḥudūd biʾl-shubahāt aḥabb ilayya min [an] uqīmahā fī ʾl-shubahāt. no.” (Idraʾū ʾl-qatl waʾl-jald ʿan al-muslimīn mā ʾstaṭaʿtum. al-Khaṭṭāb (2) Abū Ṭāhir al-Faqīh—Abū Bakr al-Qaṭṭān— Ibrāhīm b. also attributed to ʿUmar. Abī Bukayr—al-                                                                   132 Ibn Abī Shayba. Abī Farwa]—ʿAmr b. ʿAbd Allāh b. 28. 28. according to the editor’s footnote). 133 134 Bayhaqī.. Abī Farwa [sic = Isḥāq b. Masʿūd] Version 6 “Avoid ḥudūd [punishments] wherever there is doubt. without commenting on its authenticity.Salām b. 8:414. Ḥarb—Isḥāq b. Muṣannaf. He records this chain. 8:414. no.) Ibn Abī Shayba (d. no. al-Ḥārith—Yaḥyā b. 17. Ibn Abī Shayba. ʿĀmir Version 5 “Avoid [sentences of] death and flogging involving Muslims to the extent possible.]—ʿUmar b. 9:360. Muḥammad]—Muʿādh (b. Sunan. 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. no. though Ṣāliḥ does not transmit directly from ʿUmar.) Ibn Abī Shayba (d. ʿAbd Allāh b. 9:359.

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

1999). warning that it is better to pardon offenders mistakenly than to punish non-offenders falsely. and Qāḍī Nuʿmān copied from a limited amount of books available to him—so far as we know from Madelung’s list. 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. who rejects ḥadīths such as this one with Mukhtār b. muʿaṭṭal).Mukhtār b. Albānī. no. the exponent—said to be the Prophet through ʿAlī—warns against completely neglecting ḥudūd laws.) The word I have translated as “neglect completely” (yuʿaṭṭil) also means to void. if anything the copyist would have appended that saying from elsewhere. The two are in fact different: Ḥārithī never mentions the aqīlū saying. But this is not what occurred. 86    142 . For notes on the difficulties involved in tracing this version to Ibn ʿAdī.” Ibid. or (permanently) suspend. See above. Mustadrak al-Wasāʾil.. discontinue. who were contemporaries. There were no known interactions between them. the exponents of the maxim (variously Companions Ibn Masʿūd. 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. no. from no work that would have included Ibn ʿAdī’s sources. 793. 7:109. 141 Qāḍī Nuʿmān. and ʿUmar plus the traditionist Zuhrī and jurist Ibrāhīm al-Nakhaʿī) err on the side of caution. 363/974)141 Ibn ʿAdī (d. where this Mukhtār appears. another issue worth mentioning is that this version appears only in the 4th century after the Hijra. ʿUmdat al-qārī. Albānī may have conflated Abū Ḥanīfa’s version with this one.” (Idraʾū ʾl-ḥudūd biʾl-shubahāt wa-aqīlū ʾl-kirām ʿatharātihim illā fī ḥudūd Allāh. and overlook the faults of the nobles except as regard to ḥudūd [crimes]. (Shawkānī gives the standard version. see also Suyūṭī. Irwāʾ alghalīl. 2:442-43. In addition to that explanation. as Ibn Ḥazm reasons above. note 54 and accompanying text. Instead. 20:259. ʿĀʾisha. I have translated it differently there (“suspend”) to reflect its implicit reference to case-by-case individual determinations of ḥudūd liability. we know that Qāḍī Nuʿmān most probably copied his version of the maxim from a late 2nd/8th century source used also by Zaydīs. Daʿāʾim. asserting that Ibn ʿAdī’s record of the ḥadīth matches Ḥārithī’s records from Abū Ḥanīfa in both form and isnād. Nāfiʿ in the chain for the same reason.) Qāḍī Nuʿmān (d. Albānī suggests that such a borrowing is possible. Indeed. In those versions. 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. 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). 2:463 (variation in Arabic text: adds ḥadd min before ḥudūd Allāh) (cited in Ṭabarsī. but he must mean version 7. Finally. Abī Ḥabīb—ʿIkrima—Ibn ʿAbbās (3) Ibn ʿAbbās [no isnād]                                                                                                                                                                                                 Muḥammad Ḥallāq and ʿIzz al-Dīn Khaṭṭāb (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī. one might also suppose that Ibn ʿAdī and Qāḍī Nuʿmān. 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 …). 18:26. cancel out. In this version by contrast. see above. Nāfiʿ—Abū Ḥayyān al-Taymī—his father [Saʿīd b. See Badr al-Dīn al-ʿAynī. 21. 1:135.911 (in bāb annahu lā yamīn fī ʾl-ḥudūd wa-anna ʾl-ḥudūd tudraʾ biʾlshubahāt)). copied the ḥadīth from a source common to both Sunnī and Shīʿī (Ismāʿīlī) traditionists. Jāmiʿ. 365/976)142 (1) [no isnād] (2) Ibn Lahīʿa—Yazīd b. 7:345. Versions 7 and 10 (which offers no rationale) uses language that parallels language here (taʿṭīl al-ḥudūd. note 65. Ḥayyān]—ʿAlī—Muḥammad Version 11 “Avoid ḥudūd [punishments] where there is doubt.

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

“avert ḥudūd punishments with doubts and ambiguities. but it obscures the fact that the judge or jurist typically acts as agent and addressee of the maxim.Note on translations: Throughout this chapter.. Fourth/tenth and fifth/eleventh century chains are included only if discussed in the text and otherwise not represented in the previous collections directly.” Aversion is the more literal translation (making shubha/shubahāt the active agent). Where relevant legal texts clearly intend to focus on shubha as the operative term. 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. I have retained some form of the word “aversion” (e. ḥadd-averting ambiguity).” 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. “avoidance” better captures the similar sense of a usage in familiar corpus of American legal maxims. 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. (Alternative translations that are more literal. 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    .” or even “use doubts and ambiguities to avert ḥudūd punishments. I have translated shubha (pl.g. would be. such as “constitutional avoidance. Darʾ is given alternately as “aversion” or “avoidance. in addition. 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”). 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).

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

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

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

” 236. I will argue that. 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.opposition to it was meant to curb the abuse. there was no one-to-one correspondence between it and support for ḥudūd avoidance. 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. 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. 92    .6 From that view. We might also gather that there was a fundamental conflict between tendencies to invoke the maxim and thereby avoid ḥudūd punishments. This anxiety stemmed from the juristic community’s desire for subservience to divine legislative will. Fierro counts Ibn Ḥanbal amongst the scholarly “pious opposition.                                                                   6 Fierro. “When Lawful Violence Meets Doubt. Another factor played a significant role— namely. Ibid. a high degree of moral anxiety on the part of jurists responding to shifting social and political developments in the young Muslim community.” 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. 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. and an opposite trend toward ḥudūd enforcement.

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. In reviewing the historical reports of Islamic criminal law and legal theory. through the lens of criminal law. 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. The jurists regulated the moralprivate sphere. Egalitarianism and Judicial Subservience The earliest Muslims exhibited a keen concern with adhering to the dictates of what they considered divine law. 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. 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.” 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. we observe the emergence of conceptual discussions about a “public sphere. Muḥammad sought to establish a new legal order 93    . I end by presenting. 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. II. and encouraged members of the community to be discreet about their criminal violations—taking it up with God through repentance or otherwise.

10 For a brief description.”9 These texts articulate the desire of the young community to submit to the will of God. New York: Cambridge University Press. Ibn Mājah. 4:13. nos. Fatḥ al-bārī bi-sharḥ Ṣaḥīḥ al-Bukhārī. 132. Marshall Hodgson. 1:58-59. 46. 5:668-69. Several verses in the Qurʾān instruct Muslims to “obey God and his Messenger. 12:8-9. 48:17. 1:188-230. [1955-6]).”7 promising eternal reward. The Venture of Islam (Chicago. as represented by the Prophet and others in positions of authority who. Early Islamic Conquests (Princeton: Princeton University Press.10 the major feature of the new order was its emphasis on certain moral precepts. first published 1961). Ṣaḥīḥ. Muḥammad Fuʾād ʿAbd al-Bāqī ([Cairo]: Dār Iḥyāʾ al-Kutub al-ʿArabiyya. 4296. 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). and the ‘right’ of individuals [vis-à-vis] God is that whoever refrains from associating partners with [Him] will not be punished. their selection and circulation of these texts indicate that this early community took this duty to obey Islam’s moral and legal directives seriously. 1986). Tirmidhī. Sunan. which proceeds from areas of broad agreement in early Islamic history. “the ‘right’ (ḥaqq) of God vis-à-vis His servants is that they worship Him and do not associate any partners with Him. 1997) (presenting a narrative from Shīʿī sources). Ṭāhā ʿAbd al-Raʾūf Saʿd. no. ed. in Aḥmad b. at Islam’s inception. 1974. London: University of Chicago Press. The Prophet and the Age of the Caliphates (Essex: Pearson Education. the contours of which are marginal to the discussion here. Muḥammad ʿAbd al-Muʿṭī ([Cairo]: Maktabat alKulliyyāt al-Azhariyya.8 As expressed in an important ḥadīth that we will call the ḥuqūq tradition.with God as legislator. see Hugh Kennedy. 3:32.11 The duty to obey the law was taken as a moral calling and of                                                                   7 See Qurʾān. Ṣaḥīḥ. ed. 24:52.). 2002. see Ira Lapidus. no. 5:92. The Succession to Muḥammad: A Study of the Early Caliphate (Cambridge. 1978). Patricia Crone. 33:71. A History of Islamic Societies (Cambridge: Cambridge University Press. 20. see Wilferd Madelung. 49:14. in addition to Kennedy (ibid. ʿAlī Ibn Ḥajar al-ʿAsqalānī. 69. see also 4:59 (and adding instructions to obey “those in authority over you: wa-ulī ʾl-amri minkum”). See Bukhārī. 24:54. In other words. himself as Prophet and exponent of Islamic ideals. Muṣṭafā Muḥammad al-Hawwārī. were both political and religious leaders. 94    11 . 8:1. 58:13. 2645. For textbook historical accounts. Sunan. 1981). See also Muslim. 8 9 See Qurʾān. 47. no. 47:3. 48-51 (with variations). first published 1988). For alternative accounts. 64:12. 7:298-99. Fred Donner. Narratives of this earliest history are a matter of considerable scholarly debate. Aside from establishing an “uncompromising monotheism” and the Prophet’s authority as apostle of God.

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

16 The cultural context in which Islam emerged was one in which tribal values championed a type of egalitarianism. 2:2ff (kitāb al-maqāṣid). 19-20. e. and māl). Islamic Legal Philosophy: A Study of Abū Isḥāq al-Shāṭibī’s Life and Thought (Islamabad: Islamic Research Institute. respectively. Risāla. Slaves on Horses: The Evolution of the Islamic Polity (Cambridge.against fornication. Charles Lindholm. but the gist of his understanding is shared by most jurists. honor. dīn. 2 (1986): 334-55. 17 Patricia Crone. 1980).. [1969-70]). 5 note 17). Arabs drew prestige from genealogical rank when coupled with meritorious acts affected to demand honor                                                                   14 Dāwūd al-Ẓāhirī (d. 16 15 Marlow. nasab [or ʿirḍ]. Muhammad Khalid Masud. See. 60-63 (listing the five as nafs.g. 2.15 In addition. 270/883-4). ed. sanity (or intellect). as seen through the very limited authority that tribal leaders commanded. They typically frame the impetus of criminal laws both negatively as deterrents and positively as mechanisms promoting these same values—the preservation of life. 334-35 (cited in Marlow. property— commonly referred to as the five “objectives” or “essential principles” of Islamic law (maqāṣid al-sharīʿa or al-ḍarūriyyāt al-khamsa). Miqdād al-Suyūrī. al-Muwāfaqāt fī uṣūl al-aḥkām. religion. Muḥammad Muḥyī al-Dīn ʿAbd al-Ḥamīd ([Cairo]: Muḥammad ʿAlī Ṣubayḥ. 96    . Mūsā al-Shāṭibī. Hierarchy. theft. Abū Isḥāq Ibrāhīm b. New York: Cambridge University Press. and impugning honor.” Comparative Studies in Society and History 28. cf. Naḍd al-Qawāʿid. 27. taking private property. 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). 1977).14 Dāwūd’s formulation is in the negative vocabulary of deterrence. ʿUyūn al-masāʾil.17 Hierarchy came through competition. “Kinship Structure and Political Authority: The Middle East and Central Asia. 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. ʿaql. quoted by Shaṭṭī. and defamation were legislated to deter against mixing bloodlines. Hierarchy and Egalitarianism.

B. Indeed. 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. Tauris. 4:95 for the second). rev’d ed.” See discussion in Hodgson. See Marlow. 2:247. 98-104. see also Roy P.20 Further. 49:13. (London. “The Shuʿûbîyah Controversy and the Social History of Early Islamic Iran. art. 1:241-79. the Qurʾān.” EI2.and respect. and 16:75. Mottahedeh. no matter how much they may elevate their social station. Hodgson refers to jurists who share these sentiments as the “piety-minded. 3:238. Hierarchy. 49:13 for the first category.” promising them great rewards. Loyalty and Leadership. “ḥasab wa-nasab. surely. and other types of social hierarchies..18 Against this backdrop. 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. 21 20 See ibid. see Roy Mottahedeh. 161-82. between Arabs and non-Arabs. 32:18.19 Several other verses stress that “sons and wealth” will not elevate people’s spiritual station. 26:88-89. Venture. And other verses praise those who “believe and do good works.21 Corroboration of the historical description of an egalitarian bent in the                                                                   18 See eds.” International Journal of Middle Eastern Studies 7 (1976). 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. 97    . 19 For a history of exegetical commentaries on this verse. 1980). 18:47. 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. New York: I. Princeton: Princeton University Press. 2001 (orig. 2-3 (citing Qurʾān.

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

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

“Imāma. Murūj al-dhahab wamaʿādin al-jawhar. 310/923). Muḥammad Abū ʾl-Faḍl Ibrāhīm ([Cairo]: Dār al-Maʿārif. For a brief discussion. rebellion. Shboul. 597/1200). Azfar Moin. art. see generally Haykel. 1990). 31 30 29 For a vivid discussion of examples from the central Islamic lands in the 5th/11th through 7th/13th centuries. Revival and Reform in Islam. 2007). Masʿūdī (d. 1975). Masʿūdī has been understood to represent a subtle Shīʿī critique of ʿAbbāsid rule. ed. 356/967). 86-92. ed. the Umayyads and their successors treated potential political adversaries harshly. Maqālāt al-Islāmiyyīn waʾkhtilāf al-muṣallīn. H. 1960-1977) (English translation: History of al-Ṭabarī (Albany: State University of New York Press. Yūsuf Asʿad Dāghir (Beirut: Dār al-Andalus. “Partisan Dreams and Prophetic Visions: Shīʿī Critique in Masʿūdī’s History of the ʿAbbāsids. Taʾrīkh al-rusul waʾl-mulūk. A. 3:1163ff. punishments were                                                                   28 On early Zaydī political and theological doctrines. Mottahedeh. Punishment (drawing heavily on instances presented in Ibn al-Jawzī’s 100    . covering pre-Islamic history through the year 301-2/915). this often involved violence against individuals who posed political threats. see Lange. Muḥyī ʾl-Dīn ʿAbd al-Ḥamīd (Beirut: al-Maktaba al-ʿAṣriyya. ed. Other standard examples include Ibn Jarīr al-Ṭabarī (d.and rebellion. Each reign was marked by efforts to maintain control in the face of competing claims to leadership. ed. 1989-2007) in 40 vols. Aḥmad Ṣaqr ([Qum?]: alMaktaba al-Ḥaydariyya. see Madelung. see also Abū ʾl-Ḥasan al-Ashʿarī (d. al-Muntaẓam fī tawārīkh al-mulūk waʾl-umam. 19-20.” EI2. Ibn alJawzī (d. Religious Trends.31 And within that context. 40. ed. 4 (2007): 415-28 (cautioning against an outright Shīʿī designation as that community’s theological views had not solidified by that time. 345/956). Loyalty and Leadership. Political opponents and petty criminals were put to death and punished in other severe ways never authorized by the Islamic sources. [1965-1966]) (ʿAbbāsid period). Ahmad M. 1:136-65(listing the multiple rebellions within the first two centuries of Islam’s rise). See Tarif Khalidi. see Marlow.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. Any perusal of the historical chronicles gives the impression of a series of political intrigues and power struggles. Cf.. but arguing that the work does contain a “Shīʿī critique”). esp. or otherwise. Islamic Historiography: The Histories of Masʿūdī (Albany: State University of New York Press. concise summary of the various religio-political tendencies discussed in brief here. 1423/[2002-3]) (recording the ʿAlīd revolts against the Umayyads and ʿAbbāsids). 362ff. 1992) (the Prophet’s biography through the ʿAbbāsid period). See especially Abū ʾl-Faraj al-Iṣbahānī (d. 120-45. The Birth of Sectarian Identity in 2nd/8th century Kūfa: Zaydism and the Politics of Perpetual Revolution (Princeton University: unpublished PhD dissertation.29 As a result. Hierarchy. Maqātil al-Ṭālibiyyīn. On developed doctrines. For an excellent. Justice. Najam Haider. see Madelung. 4.28 These factions remained a constant threat to each ruling authority so long as they laid claim to leadership. Muḥammad ʿAbd al-Qādir ʿAṭāʾ and Muṣṭafā ʿAbd al-Qādir ʿAṭāʾ (Beirut: Dār al-Fikr. 330/941).” Journal of the American Oriental Society 127. 1979). Al-Masʿūdī and His World: A Muslim Humanist and his Interest in Non-Muslims (London: Ithaca Press.

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

102    . see ibid. power. 672/1274) quadripartite model of social hierarchies to be observed in the law). As for this world. 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.”37 As historian Louise Marlow has pointed out. 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. society’s elite members enjoying access to wealth.35 In essence.Phil. dissertation.. A Social History of the ʿAlīd Family from the Eighth to Eleventh Century (unpublished D. For a similar conclusion. also arguing that the Qurʾān can be understood to endorse existing forms of worldly inequality in Arab society. the Qurʾānic values of egalitarianism centering on preference by moral excellence became spiritual ideals reserved mostly for the next world. 174-75. 36 37 For citations to various versions of the ḥadīth in the major Sunnī and Shīʿī collections. see Chapter 1. Hierarchy. For a treatment of how this statusreinforcing doctrine played out in the social history of the ʿAlīd community. see Teresa Bernheimer. 35 See Marlow. notes 53-61 and accompanying text (aqīlū al-kirām ʿatharātihim [illā fī ḥadd min ḥudūd Allāh]).34 Some later medieval scholars described separate tiers of society based on status and validated practices of viewing each. Oxford University.facilitated maintaining the bloodlines and status hierarchies that formed the basis for political patronage and social privilege. 7 (quoting Nāṣir al-Dīn al-Ṭūsī’s (d. note 78. 27-28. calling on people to “overlook the faults of the nobles. ibid. this was one of the many sayings that tended to reflect and reinforce the new status hierarchies. see also Marlow. 60-63 (discussing this trend at work in the context of intermarriages between ʿAlids and members of various Qurashī clans). 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.36 All of this would have nontrivial effects on criminal law. C. preference in the ruling classes tended to run parallel to tribal affinities. with a differential eye.. Ibn Qutayba uses it as proof of divine sanction for ethnic inequalities. and the idea of divine favor bestowed on some individuals or peoples over others). even under the law. such as slavery. and prestige. social superiority of men over women. 2006). Hierarchy.

40 This claim is strengthened by the fact that the saying proliferated in the Ḥijāz.” which they used to advance an oppositional political claim to leadership. they were sayings easily used by classes of transient elite. 103    .38 The saying was so widespread and well known that it was considered.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. 16-17. That is. That said.Ṭurṭūshī similarly uses it as divine endorsement for social hierarchies.. See Chapter 1. Hierarchy. 13-17.39 Marlow has argued that the aqīlū saying emerged after a shift away from the Islamic egalitarian ideals. a matter of “necessary cultural knowledge” for the educated and religious elite. 39 40 41 Ibid. Instead. each group proffering competing claims of “preference. the Ḥijāz was initially home to both Umayyad clans and to ʿAlids. because it contrasts markedly from the Qurʾānic view of moral preference that seems to reflect the values of the earliest community. like other common sayings in the first two centuries. The sayings then could well have reflected competition for social precedence in the garrison towns in Damascus and Iraq during                                                                   38 Marlow. 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. 17. note 60 and accompanying text. Ibid..

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

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

the Prophet discouraged it. the jurist argued. but it is not a case involving ḥudūd laws. and thus can warrant some kind of disciplinary punishment (ʿuqūba). 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). If his brother.rampant corruption. In fact. Ibn Ḥabīb admitted. Muslim ascetics have used such figures of speech. When God censured them for complaining. 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. then the statement was praiseworthy. in such a state of attention and repentance that he was truly aware of presenting himself to God as a humble and lowly creature. Yet it was no secret that this esoteric meaning was unlikely. 106    . Jacob said that he had committed a sin—not a crime—and asked for                                                                   48 Ibid. Admittedly. That is. It is ill-advised. there is no legal rule prohibiting people from complaining of hardship. 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). but God certainly never legislated any ḥadd sanction against it. This second meaning is common to “fools and ignoramuses” who are merely complaining about what God has meted out to them. meant something of this kind. 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. in mentioning the murder of the illustrious Companion-caliphs. his brother’s words could be construed as either praiseworthy or ill-advised. Ibn Ḥabīb said. This.48 The second statement was more problematic.

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

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

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

ed. 268-69 [see Muḥammad b. Kasraw Ḥasan (Beirut: Dār al-Kutub al-ʿIlmiyya.55 * * * These stories depict jurists as members of elite classes in the second and third centuries. 339/950) avoiding the ḥadd punishment for drinking according to a Ḥanafī rule disallowing punishment for a single confession (citing Bunnahī [sic = ʿAlī b. ʿAbd Allāh al-Nubāhī].: University of Miami Press. as it had been with the caliph Hārūn’s son and Hārūn. Alternatively these jurists could have been using the maxim for its intended use.” AlAndalus 36 (1971): 71-79. though use with caution. by definition and                                                                   55 Maribel Fierro recounts additional stories in “When Lawful Violence Meets Doubt. 1934). memorable for socio-political reasons or for the cunning on display. (3) Umayyad governor of Basra Khālid alQasrī (d. ed. ʿAbd Allāh b. al-Marqaba al-ʿulyā.]. 2003)]. 1998). 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. the following: (1) Andalusian Judge Ibn Abī ʿĪsā (d. (2) Zīrid vizier Simāja avoiding the ḥadd punishment in a similar scenario (citing Ibn al-Khaṭīb. Nawādir al-khulafāʾ al-musammā iʿlām al-nās bi-mā waqaʿa liʾl. Ayman ʿAbd al-Jābir al-Buḥayrī (Cairo: Dār al-Āfāq al-ʿArabiyya. in addition to these three cases. ed. 1974). Aʿmāl al-aʿlām fīman būyiʿa qabla ʾl-iḥtilām min mulūk al-Islām wa-mā yataʿallaq bi-dhālika min al-kalām. 2005). 89–91/222–25). Fl. That the maxim was abused is a plausible interpretation with which Maribel Fierro regards these cases. 1876) [see Muḥammad b. and. Diyāb al-Itlīdī. ed. The Zīrids of Granada (Coral Gables. and trans. see Andrew Handler. Arsenio Cuellas Marqués (Granada: Universidad de Granada. night 298. the anecdotal literary and biographical sources in which these stories appear no doubt record the most spectacular of such encounters.” 1-2. E.Barāmika maʿa Banī ʾl-ʿAbbās.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. even in criminal law. 216/831))]). Nawādir al-khulafāʾ (Cairo. Kitāb aʿmāl al-aʿlām. 73-74) [On the Zīrids. citing but potentially abusing the ḥudūd maxim. 57-61 (as related by Aṣmaʿī (= Abū Saʿīd ʿAbd al-Mālik al-Aṣmaʿī (d. and E. al-Khaṭīb. García Gómez. Lévi Provençal (Rabat. 229-30 (describing. “Sobre la diferencia en el castigo de plebeyos y nobles. 110    56 . Itlīdī. To be sure.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. brother of Ibn Ḥabīb). 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.

: Brill.” III. It stands in sharp contrast to the theory of criminal law offered in the works of ḥadīth and law from the same period. somewhat like common law. a look at the early cases reveals competing imperatives alternately for ḥudūd imposition and avoidance. “Legal Literature and the Problem of Change: The Case of Land Rent. The stories above come from historical sources that describe political events and some legal cases but are non-precedential. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (New York. I aim to gain a fuller sense of where the ḥudūd maxim fits in the larger landscape of early Islamic law and society. 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. and even when they feature in legal cases and advisory opinions. they do not attempt to provide a representative or comprehensive sample of the course of events. 1999). For discussions. Cf. Rebellion and Violence. I mean to suggest a fitting social and political context for understanding the competing tendencies in ḥudūd jurisprudence. Baber Johansen. 1996). Competing Cases: Imposition style of Islamic historiography. Avoidance and Dealing with Doubt With this background. by it. 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. Leiden: Brill. 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.57 Turning to the precedential reports (ḥadīths) in the normative juristic sources.” in Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden et al. By reviewing                                                                   57 In Islamic legal theory. they only form precedent gradually over time as they are repeated and absorbed into the normative texts and treatises of the jurists. 446-64. only directives based on Islam’s foundational legal sources are binding. see generally Sherman Jackson. Abou El Fadl. 111    .

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

The idea was that God Himself was “the great avenger of justice. ([Beirut]: Dār al-Fikr al-ʿArabī. und 14. led Muslim jurists to react against social hierarchy and against disregarding the moral imperatives represented by ḥudūd laws. Many who were nominated stubbornly preferred to remain separate from the political apparatus. Ibid. particularly when dealing with capital punishment. 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    . or some kind of vengeful divine retribution. 165. [1965?]). 11 (quoting Adam Smith in Adam Smith’s Moral and Political Philosophy. 37-48. according to “anthropologists and historians of religion …. jurists who worked with the political authorities and took part in their schemes were a minority. and the sources are replete with instances of their recoil at being nominated to judge.. Though there was certainly overlap between juristic and political arenas. bad karma.”62 As such. Ibid. I argue. Famously.63 The overarching impetus though was a moral anxiety inspired by a fear of the very personal spiritual consequences of judging unjustly. ārāʾuh wa-fiqhuh.” 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.”61 As a general proposition.” EI3 (Leiden: Brill Online. Abū Ḥanīfa: Ḥayātuh waʿaṣruh. “Abū Ḥanīfa. 192-93. Schneider (New York: Harper and Row. 61 Ibid. see Muḥammad Abū Zahra. 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. ed. See also Hiroyuki Yanagihashi. art.jurists feared the spiritual consequences of unjust verdicts. 47. bad fate. esp.64 and                                                                                                                                                                                                 des richterlichen Folter in islamischen Rechtsdoctrinen des 13. Similar anxieties. 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. Abū Ḥanīfa was said to have endured torture for his refusals. Herbert W. 1970). Jahrhunderts. 198-99 ). 2nd ed.

Abū Yūsuf. 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. 65 See Wakīʿ. as revealed through myriad cases circulating amongst the jurists during these first three centuries. The aim here is to illustrate the tendency of anxiety-ridden ḥudūd enforcement by providing a few “landmark” cases from the first three centuries. 1:123). Mālik. it was part and parcel of their moral anxieties surrounding judging in accordance with God’s law. evidentiary standards. inasmuch as they took themselves to be more able exponents of God’s law. treatises by Shāfiʿī. a comparison of the selected cases here with the full range of cases and rulings contained in 2nd/8th and 3rd/9th ḥadīth collections. fatāwā. fiqh work after the 3rd/9th century. however. Additionally. “Abū Ḥanīfa. attributed to the Prophet and other early authorities as judges in criminal cases. how to implement the ḥadd sanction. 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. 19-61 (the first chapter preceding biographical reports on judges.. 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. including many reports dating from the 1st/7th century (as per Motzki). as discussed in the next three chapters. and qawāʿid works from the 5th/11th through 9th/14th Mamlūk and Andalusian periods. further exhortations to mercy. These concerns resulted in a certain insistence on ḥudūd imposition in many instances.” EI2. and Shaybānī).the main source for the early history of judges opens with prophetic cautions against judging.g.. In other words. while the ḥadīth works cover more subject areas (e. and when ḥadd sanctions are due. 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”). the definitions of crimes. art. forgiveness. Akhbār al-quḍāt. in that they are discussed often by subsequent jurists as central bases for their criminal opinions.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.g. and fiqh. the selection of cases. is based on an analysis of the usage of jurists in fiqh works from this period (e.65 This animus against judging has been seen as an unwillingness on the part of many jurists to collude with a corrupt government apparatus. 66 This is admittedly a subjective determination. 114    .

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. and historical-political literature. 61 and passim. cf. but rather that. To take just one example. esp. they are interpretations that partly reveal the historical circumstances and values of the community recounting them. Chapter 3 (describing the character of early Islamic historiography and surveying major approaches to the field in contemporary scholarship). we can understand them to indicate the ideas that the later generations of scholars came to associate with Islam’s earliest period. (Princeton: Princeton University Press. 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.” Islamic Law and Society (Evidence in Islamic Law) 9. This approach is not directly concerned with questions of origins.” In a similar vein. legal. likewise. reports of them are available in written literature only from the late Umayyad and early ʿAbbāsid periods. Hierarchy. 1998). We can also take them to represent the arguments that resonated in juristic circles as normative. 1st ed. and they do not purport to be transcripts of actual criminal proceedings. esp. as with all historiography.The usual disclaimer applies when dealing with sources that are not contemporaneous with the events that they describe.. who noticed the high regard that one medieval Near Eastern society accorded to oaths through observing their portrayal in anecdotal. or historical accuracy. authenticity. 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. 13 (adopting a similar approach in the context of maxims). Narratives of Islamic Origins: The Beginnings of Islamic Historical Writing (Princeton: Darwin Press. Die Anfänge/Origins. Fred M. See Mottahedeh. also Marlow. Donner. see.67 This is not to suggest that these texts are entirely fictional. 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. 1991. and Rudolph Peters. 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. Although the cases presented here purport to detail events from the Prophet’s time and immediately after. Islamic History: A Framework for Inquiry. e. Loyalty and Leadership.68                                                                   67 I take my cue from Roy Mottahedeh. The point there was not whether the anecdotes told involving oath-taking were historical. ed. 1983). 68 For discussions of Islamic historiographical literature. Rather than taking them as verbatim representations of what actually happened then. Stephen Humphreys. “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma Procedure in Islamic Law. 2 (2002): 132-67. at the earliest. 53. 1-31 (Introduction: surveying approaches to Islamic history 115    .g. rev. Excellent examples of this latter approach include Harald Motzki.

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

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. during the Prophet’s lifetime. leading members were preoccupied with the                                                                   71 See above. These cases. for which she was eligible for the ḥadd punishment of handamputation.71 throughout. I will argue. The reports depict a woman who. used to borrow goods and then deny that she had done so. and this materializes in measures of ḥudūd avoidance altogether. I present these competing tendencies in criminal law jurisprudence by focusing on cases that are of recurring importance in the later legal literature. A. This woman belonged to the prominent Makhzūm clan within the Prophet’s tribe of Quraysh.reflect a deeper moral anxiety about imposing the harshest of sanctions—the death penalty. Ḥudūd Imposition: Egalitarianism and Judicial Subservience 1. 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. This amounted to theft. 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. In what follows. note 66. Accordingly. It is through these cases that jurists negotiate competing values. 117    . 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.

1953).004 (citing Bukhārī and Muslim. those who came before you were destroyed because [it was their practice that]. 6:137. no. no. 284. At the time the ḥadīth scholars and jurists recorded this case in the eighth and ninth centuries and after. they would impose the ḥadd punishment on him. Ṣaḥīḥ. the Prophet prohibits in no uncertain terms disparities in ḥudūd enforcement based on social status or familial relations. Nasāʾī. to go speak to the Prophet on the woman’s behalf in an attempt to avert the requisite sanction. 4:133. in rebuke and admonition: Surely. 73 Abū Dāwūd . He then stood and addressed the people publically. Her mention brought into play the deep religious and cultural valence that Fāṭima enjoyed rather uniquely in Muslim societies across time and space. no. Ṣaḥīḥ. Usāma had the greatest chance of success given his relationship to the Prophet: he was the son of the Prophet’s own adopted son. Zayd. no. 1688. I swear by God that if [my own daughter] Fāṭima bt.” EI2. Abū ʿAbd Allāh al-Zubayrī. and noting that they recorded the version of al-Layth b. sharīf) stole. but when a commoner (ḍaʿīf) stole. Sunan. Fāṭima had long been recognized as the single most-revered                                                                   72 On the stature of the Makhzūmī clan within the Qurashī tribe. Social History of the ʿAlīd Family. Muslim. Banū. Jamharat nasab Quraysh. 124. E. see Zubayr b. 4373 (that she had stolen in the narration by al-Layth b. Saʿd). 118    . Usāma b. Sunan. Nasab Quraysh. art. 247. 1381/[1962]). 4374 (that she used to borrow goods without returning them in the narration by Maʿmar. I would cut off her hand.matter. 6887 (in bāb iqāmat al-ḥudūd ʿalā ʾl-sharīf waʾl-waḍīʿ. In their estimation.72 They designated one Makhzūmī clansman. Maḥmūd Muḥammad Shākir (Cairo: Maktabat Dār al-ʿUrūba. kafāʾa). ed. Sunan. when a person of high class (or a noble. al-Aswad). are you interfering on a matter involving one of the ḥudūd laws of God?!” and orders the sentence to be carried out. 4:330. Bayhaqī.73 In so saying. Saʿd). Bakkār. see also Bukhārī. Jamharat ansāb al-ʿArab (1962). Lévy-Provençal (Cairo: Dār al-Maʿārif liʾl-Ṭibāʿa waʾl-Nashr. See also Martin Hinds. “Makhzūm. as necessitated by the principle of equality in marriage. But the Prophet responds quite unfavorably: “Usāma. ed. no. Bernheimer. they would let him go. The allusion to Fāṭima is significant for reasons beyond the obvious familial connection and caution against nepotism on that basis. or that she stole a qaṭīfa from the Prophet’s house in the narration by Masʿūd b. Muḥammad stole. 60-63 (noting intermarriages between ʿAlids and Makhzūmīs as indicants of marital suitability for those of the same social-genealogical status. 17.

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

Muṣannaf. ʿAbd al-Razzāq (d. no. Sunan. no one could. “if only you had done so before you came to me!” In one version of the story. Umm (1961). For the latter. Tajrīd. 10:229. 120    . See. another has it that he left it atop his waiting camel outside. 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. Muslims regarded Ṣafwān with some degree of suspicion. the Prophet ordered that the ḥadd punishment be imposed. By placing Ṣafwān at the center. see. would you [still] cut off [this man’s] hand for my cloak that I now gift to him?”). cf. rejecting Ṣafwān’s belated attempt to avert it. Perhaps for this reason. 8:287.. 11:5986-87. no. which is a key condition for the application of the ḥadd punishment as against a more lenient discretionary punishment. e. 10:229. There are many versions of this story. 211/826). no. ʿAbd al-Razzāq. 76 A minority—who take this case as a precedent for ḥudūd avoidance—deny that the Prophet imposed the ḥadd. see Bayhaqī. the later legal sources tended to pick up the version listed above in the text. “I hereby gift him the cloak. 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. he was                                                                   75 Shāfiʿī. nos.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. Apparently.002-03. For a collection of versions. 17. each with slight variations. Qudūrī. Muṣannaf. because the thief would not have taken the cloak from a secure location. At this. Ṣafwān balked: “I never intended this [outcome]!” he exclaimed. Legal process was key. If Ṣafwān’s actions are taken at face value. If even the Prophet could not avoid applying sanctions once the process revealed that an offender had clearly violated the law.75 Jurists typically cite this case for the proposition that the matter had already been adjudicated. see also Nasāʾī.accord with the Qurʾānic ḥadd punishment for theft.g. 18938 (“O Messenger of God. Sunan. 18. But this version is problematic as a model case. 131 (hallā qabla an taʾtīnī bih). This variant says the cloak was stolen from under his head. 7371 (similar to ʿAbd al-Razzāq’s version). the anecdote reflects a juristic ideal of lenience.” The Prophet responded. 4:4330.938.

354-55. This incident concerned a man who brought his nephew to the famous Companion of the Prophet. 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. Even Ṣafwān was shocked and regretted his pursuit of justice immediately when he learned of the harsh consequences. and eventually converted).one of the Prophet’s greatest opponents before his conversion. Age of the Caliphates. he appears to have been the first judge with any lasting effect. 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. Boston: Brill. see Boaz Shoshan. see also Kennedy. precisely because of his otherwise dubious regard in the sources. 43 (grouping Ṣafwān b. See Patricia Crone. 1987). The Poetics of Islamic Historiography (Leiden. and the sources depict him as belatedly joining the community in Medina. He was a prominent Companion and the only one from whom the sources preserve ḥadīth narrations and judicial decisions. Umayya amongst the “die-hard leaders” of Mecca who resisted the Prophet’s overtures to reconciliation until the Prophet’s eventual conquest of Mecca. Meccan Trade and the Rise of Islam (Princeton: Princeton University Press. before the complaints of his nepotism had begun. reconciled. 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. while he was presiding as Kūfa’s first governorjudge. On the negative portrayal of Ṣafwān in the historical literature suggesting doubts about his level of commitment to the Muslim community. regardless. 87. 121    78 . 2004).78 The uncle asked Ibn Masʿūd to punish the young man for drunkenness. which were often relied upon by his successors. 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). This would have occurred during the reign of ʿUmar or the first part of ʿUthmān’s reign. There is some dispute about when Ibn Masʿūd assumed the judgeship in Kufa or even who was the first. For reports of these decisions. Akhbār. Ibn Masʿūd (d. see Wakīʿ. the episode may have meant to portray his ignorance or genuine—but belated—degree of compassion. only after which he returned. 32/652-3).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. His was a moral anxiety that appeared more typically in the persons of the Prophet or ʿAlī when it involved death.

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

and if she confessed. but the sentence: “My son is this man’s servant (ʿasīf) and committed zinā with his wife. Society. and Culture in the Maghrib. In fact. but the punishment itself was. The father explained his son’s case. or baseless pleas for lenience were to be entertained. and the orphan’s attempts to avoid punishment in the face of admitted guilt were ineffective. 62-63. after the early period. see David S. no doubt. those in Yemen did not know of it. “He then instructed Unays to go to the accused wife. Moral Anxiety: Jurists as Opposition to Status-Reinforcing Undercriminalization The jurists’ interest in recounting these cases was two-fold.81 Despite the attempts to avoid them. Law. ḥudūd punishments were applied in all cases. al-Ṣughayyir.82 3. 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. Wansharīsī. 2002). as when someone confesses to adultery then subsequently denies it. Powers. personal qualms against severity. the guilt was not contested. Usāma’s attempt to intervene on behalf of his fellow clanswoman failed. For a discussion. Miʿyār.As with the other cases. No intervention. But when I then asked the more knowledgeable people [about the matter]. In that case. 123    . For instance. 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.” The Prophet reluctantly responded that the latter opinion was correct. maintained that post hoc changes to legal facts sufficed to create ḥadd-averting uncertainty. 1300-1500 (Cambridge. ḥudūd imposition is mandatory. or if it was. 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. no. 6440. and even in the midst of carrying out the sentence. 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. I ransomed my son with a hundred sheep and a slave-girl of mine. any change of legal facts tended to suffice for ḥudūd avoidance—at the trial stage. at a time where it was not settled that stoning was the appropriate punishment for adultery. New York: Cambridge University Press. after sentencing. 82 There is another series of cases reported from Yemen. Ṣaḥīḥ. The point of this story is to provide evidence that stoning was a bona fide Islamic rule. 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. Thus. the Mālikī jurist Wansharīsī reports a case from 8th/14th century Andalusia where the judge. to stone her. In one case. 4:494. First. It also fits with the idea that where the facts are established and guilt is not at issue. 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. which receives considerable attention in later juristic literature. not contesting the guilt. the report emphasizes the duty to obey the law by imposing ḥudūd punishments once the crime is established.” Bukhārī.

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. 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. and Change in Islamic Law (Cambridge: Cambridge University Press. Aron Zysow. as we saw above. If jurists were casting about for an argument that their hands were constrained by the dictates of the law. Continuity. was to impose the law according to the facts of the case. these cases provided it. who tried to persuade judges time and again to avoid punishments based on non-legal considerations. Second. The Economy of 124    . By keeping the memories of the egalitarian and moral ideals alive with such stories in criminal law. 2001). the jurists’ arguments                                                                   83 On the epistemological basis for juristic authority in Islamic law. they could argue from these precedents. 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. On that basis. These cases showed that the Prophet himself and recognized leaders of the community were concerned with obedience to the law. 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. jurists could present themselves as the agents best-equipped morally and intellectually to define Islamic law and its accompanying moral imperatives.criminal culpability. The jurist’s duty. Authority. cf.83 Significantly. see Wael Hallaq. 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.

the specialists in religious learning so prominent in the later Islamic Middle East. The pious opposition to the Umayyads not only shrank the caliph’s authority to promulgate legal rulings. 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. Lessons in Islamic Jurisprudence (Oxford: Oneworld. it also created a number of circles in which a more intense discussion of religious matters took place. See Roy P. and their members were the forerunners of the ulema. Harvard University.resonated with the political and spiritual sensibilities of enough factions that they were ultimately successful in their claim to authority.. 6-8. 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.84 This portrayal of juristic authority in epistemic-moral terms against the state is nothing new. 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. 85 84 Ibid. It bears repeating that the point is not whether the events                                                                                                                                                                                                 Certainty: An Introduction to the Typology of Islamic Legal Theory (unpublished PhD dissertation.”). Although later dynasties often appointed muftis. Mottahedeh. Conscientious Muslims went to the legally minded among the forerunners of the ulema and got opinions….85 These views are employed here to describe just how the jurists as oppositional agents to the state functioned in the criminal law context. 2003). 1 (“From a very early period … Muslims came to treat the question of legitimacy along explicitly epistemological lines. 7-8. 125    . 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. The independence of the mufti was a significant part of the formation and persistence of a semi-independent community of jurists. 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. Certainty and probability were the fundamental categories with which they approached every question of law. 1984). … The distance between the “pious opposition” and government also accounts for the development of the independent fatwā or opinion …. This concern with epistemology sets Islamic law apart from other legal systems that treat the problem of legitimacy in institutional terms.

For a similar ḥadīth attributed to ʿUmar from an earlier period.963 (la-an uʿaṭṭil alḥudūd biʾl-shubahāt aḥabb ilayya min [an] uqīmahā fī ʾl-shubahāt. the more concerned the scholarly classes became with insisting on those imperatives. 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. Ḥudūd Avoidance: Fairness & Moral Anxiety 1. as discussed below. subservience to divine law was both the raison dʾetre for political authority and its legitimating factor. no. Notably. a rash of reports details instances where the Prophet and his Companions or family members advised ḥudūd avoidance rather than ḥudūd imposition. 126    . to define their own moral authority against that of the political elite—packaged as mere subservience to divine law. Sunan.060 (“Avoid ḥudūd [punishments].”). and in the process. but that the jurists invoked these cases as precedent in their moral oppositional project. B. 9:359. while they reportedly acknowledged some instances where ḥudūd liability may be removed.actually took place. These cases reflect juristic attempts to grapple with what they took to be the dictates of the law. as the following cases show. jurists expressed a certain amount of trepidation in imposing harsh sanctions.                                                                   86 Bayhaqī. Thus. 17. The more the politics of power drove political authorities to disregard Islam’s early moral imperatives. That is.). Death is Different: The Case of Māʿiz and Stoning for Adultery Jurists did not always emphasize the mandatoriness of imposing ḥudūd sanctions. To the contrary. though it is improper for the Imām to suspend them [completely]: Idraʾū ʾl-ḥudūd wa-lā yanbaghī liʾl-imām an yuʿaṭṭil al-ḥudūd. Muṣannaf.”86 As later theorists would frame it. 28. 8:414. they determined that “it is improper for the Imām to neglect them [altogether]. no. see Ibn Abī Shayba. 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.

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

For example. even though the report records that Māʿiz was stoned to death.p..understood to have been a grave error. e. but that Ibn Abī Laylā held the opposite view—that the ḥadd applies with confessions. which cannot be retracted). 91 See.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. The report is also cited for guidance on the number of confessions due for ḥudūd liability. whether the Imām or head of state must be present in such cases.93 Thus. Tajrīd. e. that liability is not removed with repentance. 3:26364. 2:108. Umm.g. 11:5949-50 (that liability is not removed with repentance and that four confessions are necessary). ed. Jaṣṣāṣ. Ikhtilāf.g. 92 See Abū Yūsuf. traces of which appear scantily and are rejected as significant objections—as in Khārijī objections to the punishment. 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. just as the Prophet asked whether Māʿiz was of sound mind before ruling.. edited by comparison to Kitāb al-ʿInāya by Bābartī (d. 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). which either way should have put a stop to the stoning. 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. 7:498 (that zinā liability requires only a single confession. Later jurists cite the Case of Māʿiz for multiple points of criminal law. See. e. some jurists understand the case to require judges to question offenders for possible deficiencies that would remove ḥadd liability. 156-57 (noting that he and Abū Ḥanīfa share this view. al-Tanbīh ʿalā mushkilāt al-Hidāya. 128  93   .90 Among them is that the case represents a precedent for and mechanisms to avoid imposing criminal sanctions. 786). Aḥmad Badr al-Dīn Ḥassūn (n.91 Others add that the “ḥadd is to be avoided (yudraʾ ʿanh al-ḥadd …)” whenever the accused retracts his or her confession or repents. on the margins of Marghīnānī.. Hidāya. who is authorized to carry out the punishment. See. Ibn Abī al-ʿIzz. Aḥkām. 4:128.g. 1996). given that the sanction does not appear in the Qurʾān and was the subject of some dispute in the early community.: Dār Qutayba. whether a defendant’s expressions of repentance in ḥadd crimes suffice to cancel ḥadd liability as they do for ḥirāba. Shāfiʿī. etc. Qudūrī. Ibid.

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

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

and the passerby took off after him. a man raped a woman while she was on her way to the mosque to perform the morning prayer. 9:361. she seemed to be a victim. Ṭuruq. Then they brought that man along with the victim to the Prophet to preside over the matter. 2-3 note 2 (listing additional sources). The editor remarks that in other variants. saying. Sunan. The story is recounted in Ibn al-Qayyim (d. As she cried out to a passerby for help.891. Clearly. The woman then saw a group passing by. and the Prophet reportedly sentenced him to death-by-stoning. But just then. possibly of rape. but it was not clear that the woman was culpable. God would punish them [the people]. no. arrested him. 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. 1104/1692). Instead. the rapist fled. The man demurred. 751/1350). Muṣannaf.. no. 100 See Qummī. and these people overcame and arrested me. Wasāʾil al-Shīʿa. and above. 27. the sources report that early one morning (fī sawād al-ṣubḥ). at the beginning of Chapter 1.feared God’s wrath “if [he] sentenced this woman to death.” Ibid. so called out to them for help. 88-89 (cited in al-Ḥurr al-ʿĀmilī (d. 131    . note 1 (citing Bayhaqī. 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). pp. similar to the story of ʿAlī and the man found with the butcher’s knife recounted in Chapter 1. They caught up with the man to whom she had appealed for help and.100 In this case.” The woman insisted that the man was the rapist. his remark could be read to mean the following: “if I killed this woman standing between these two mountains. “Don’t                                                                   99 Ibn Abī Shayba. thinking he was the rapist. Qaḍāyā. The woman accused the man of perpetrating the rape and the group of men confirmed that they had overcome him and captured him. 2:172. 2)). “I was the one trying to help her [catch] the rapist. 82-84 (quoting Qaḍāyā).”99 Accordingly. 8:336). they heard someone in the crowd shout. the meaning of ʿUmar’s actual comment is somewhat obscure. On the last comment. This brings us to another case of rape.

132    .B.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. the overall thrust is toward ḥudūd avoidance. 84-89 (citing multiple versions and discussing discrepancies as to what actually happened.3.101 The Prophet’s decision here accords with the reports of his treatments of Māʿiz followed by ʿUmar’s treatment of the mysteriously-impregnated woman. If the                                                                   101 See Ibn al-Qayyim. he released the falsely accused man and forgave the rapist. from the collections of Nasāʾī. see below. respectively—even in the face of probative testimony or seeming evidence of foul play. and the victim. Ṭuruq. On the discrepancies. ʿUmar displayed an immediate willingness to ascribe no-fault to the pregnant 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. Aḥmad b.” but the Prophet refused. Section III. similarly coming up with the “excuse” of rape even before hearing the woman’s testimony. the man who had tried to help her. And the Prophet and ʿAlī declined to punish men who in two cases had admitted to the most serious of crimes—rape and murder. The Prophet tried to deter Māʿiz from confessing. 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. ʿUmar urged the Prophet to “stone the one who confessed to zinā. Ḥanbal and Abū Dāwūd). Instead. 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. saying that he had repented.

133    .” 233ff. 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. the common thread is that the death penalty is the sanction for the acts in question: adultery. Instead. Here. 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. rape. 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. While these sanctions appear to the modern eye to be extremely harsh. murder. that aim was not served by making exceptions to the enforcement rule. With status hierarchies in mind. guilt was not at issue. specifically unwarranted ḥudūd avoidance for certain classes. In the previous set of cases. 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. Already. the crimes had been established by confession or proved and the only question was whether there was cause for avoiding the sanction. the whole thrust of the claim against preferential treatment in the law was to highlight and oppose arbitrarily differential treatment. those of Fierro in “When Lawful Violence Meets Doubt. questions of culpability arose from evidentiary infirmities. Here.jurists aimed to enforce ḥudūd laws to serve their claim to the moral authority to insist on doing so.

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

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

But ʿAlī is a major factor in the equation from both Sunnī and Shīʿī perspectives. Until now. al-Ashtar al-Nakhaʿī (d. 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). and distinction-by-piety in his judicial decisions and other governmental-legal policies. 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. In the opening section of the letter. unlike another recension recorded in the Ismāʿīlī context. 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. Later commentators illustrate this point by placing particular emphasis on the judgments and governing policies of ʿAlī. 53 (wa-ashʿir qalbak al-raḥma liʾl-raʿiyya waʾl-maḥabba lahum waʾl-luṭf bi-him. compassionately. Naturally. the passage reads “they are your brethren in lineage” instead of “religion. 426-45. letter no. on the occasion of his appointment as governor of Egypt. 38/658). Nahj al-balāgha. consuming their wealth [literally: food]. we have been concerned with decisions in the larger proto-Sunnī context. this version does not mention lineage or status as the basis for just treatment. In Qāḍī Nuʿmān’s version of the letter. 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. 1:417 (fa-innahum ikhwānuk fī ʾl-nisba …). do not be like a voracious predator over them.” Qāḍī Nuʿmān. 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. The sources portray ʿAlī as having insisted on principles of justice.arrogating to themselves the right to take life or punish without clear sanction from the laws that had been outlined in the foundational texts. Daʿāʾim. justly. 136    .”105 The letter has been                                                                   105 Al-Sharīf al-Raḍī. Mālik b. Notably. equity.

al-Dharīʿa ilā taṣānīf al-Shīʿa (Najaf: Maṭbaʿat al-Ghārā. For a discussion of the different recensions of the letter and questions of authorship that arise in both Sunnī and Shīʿī literature. For example. 43ff and passim (discussed below). 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. See Ibn al-Qayyim. The cases reported about ʿAlī as preserved in the ʿAlid community and repeated in the Sunnī circles are noteworthy also because of their provenance. 107 106 See Qalqashandī (d. “An Early Fāṭimid Political Document. 53). and 6:228-29.109 Strikingly.” Studia Islamica 48 (1978): 71-108. 34 (ʿAlī al-qudwa waʾl-muʿallim) (quoting Simnānī. 24:412-13 (on Nahj). ʿAlī is credited with being a main source—alongside the Qurʾān—for the Islamic law of rebellion. 15:362-63 (on the ʿahd). 1964). 137    108 109 .taken as a model for Islamic political theory. as the earliest and most detailed work of its type. 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. Rebellion and Violence. This.”108 In our context. Maṣādir Nahj al-balāgha wa-asānīduh (Beirut: Muʾassasat al-Aʿlamī liʾl-Maṭbūʿāt. 1936). see Wadād al-Kadi. 3:424-31. 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. See ʿAbd al-Zahrāʾ al-Ḥusaynī al-Khaṭīb. 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.” multiple legal treatises point to “ʿAlī [as] the example and the teacher.107 Sunnī jurists also hold ʿAlī in high regard so far as it concerns other legal principles and judicial policies. since he was poisoned in a town near the Red Sea before he ever got to Fusṭāṭ. 14:111-61. and an ʿIrāqī one that appeared in the last decades of that century at the latest and that is included in the Nahj). 7:187-207. 4:118-20. 1975). Rawḍa and others). 13:373-75. There are dozens of commentaries. In fact.106 The letter also appears in the collections of documents intended to provide judicial and administrative guidance in the Sunnī context. especially in the Shīʿī context. “when it comes to Muslims fighting each other. monographs. 821/1418). in another context. he draws on Shīʿī judicial records for his own source material. Ṭuruq. despite the fact that Mālik al-Ashtar never actually took office. Muḥammad Muḥsin Āghā Buzurg al-Ṭihrānī. Abou El Fadl. Ṣubḥ al-aʿshā fī ṣināʿāt al-inshāʾ ([Cairo]: al-Muʾassasa al-Miṣriyya alʿĀmma liʾl-Taʾlīf waʾl-Ṭibāʿa waʾl-Nashr.

M. about half are criminal decisions. indicating that Muḥammad b. The work has been published as an independent volume. for which he notes two different versions of the text on the basis of different manuscripts. Sh. 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. 450). 151/768-9) collected judgments in his “well-known” work. The high percentage of criminal cases may be coincidence.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. wherein the editor has attempted to collect all of the quotations attributed to the above-mentioned book in order to reconstruct it. See Bashīr alMuḥammadī al-Māzandarānī ed. and incorporated into it other material he had heard from the latter from or about ʿAlī. 346 (“The beginning sentence of the work quoted in Fihrist: 108 is the same as that of the similar book by ʿUbayd Allāh b. Musnad Muḥammad b.110 In addition. 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. Rijāl [= Fihrist asmāʾ muṣannafī ʾl-Shīʿa].”). Qays took a copy of that earlier work. 1409/[1989]).. al-Zanjānī (Qum: Muʾassasat al-Nashr alIslāmī al-Tābiʿa li-Jamāʿat al-Mudarrisīn. ed..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. Kitāb Qaḍāyā Amīr al-Muʾminīn (“The Book of Commander of the Faithful [ʿAlī]’s Judgments”). 1407/[1986-7]): 323). These decisions would have served as legal                                                                   110 See Modarressi.112 The most comprehensive collection of the early period reporting his judgments at length is that of Ibrāhīm al-Qummī. Tradition and Survival. though penned during his lifetime. Qays al-Bajalī (Qum: al-Markaz al-ʿĀlamī liʾl-Dirāsāt al-Islāmiyya. NB: The editor of Qummī’s Qaḍāyā prepared a critical edition of that text. Qays al-Bajalī (d. I have omitted citation to the second version unless there is some material difference between the two texts. ʿAlī al-Asadī al-Kufī alNajāshī (d. but it may also indicate a high degree of concern with moral and institutional jurisdictional concerns expressed through criminal law. There are many quotations from this author of material that relates to the topic of this work … . Abī Rāfiʿ … as given in Najāshī: 6. In this compilation. 346 (quoting Abū ʾl-ʿAbbās Aḥmad b. which was endorsed by Muḥammad al-Bāqir as in Fihrist: 108. strikingly. Ibid. 138    112 111 . as described below.

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). Rebellion and Violence. That is. these jurists were not concerned directly with balancing their power against that of the state. Shīʿī discourse was moralistic and “affirm[ed] a high ideal. That is not to say that they did not comment on criminal and other public laws. As such.commentary and critique of criminal law practices and legal doctrines in the majority community. with no real hope for political power. 319). in discussions of rebellion in Islamic law.e. 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. 295-320 (quotation on p. but jurists concerned with those contours and relationships of others (i. the Sunnī jurists and the political authorities)..” 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. and—as has been observed—often did display a decidedly moralistic bent. 139    . 218.113 The records of ʿAlī’s judgments then offer a vision of what proper criminal jurisprudence                                                                   113 One scholar notes that. Yet it is to say that their main interest was in preserving records of the proper laws—and as such. these records and others show emphatically that they did. always represented an implicit challenge or critique to the mainstream actors based on a heightened sense of moral consciousness. Their relegation to the sidelines in significant measure for some time meant that Imāmīs could maintain a more moralistic tone. 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.

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

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

Provincial and Islamic Law. 96ff. 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). 18. G..” the origins and function of which scholars have debated at length. 142    118 . That is. “Al-walad li al-firāsh.” Arabica 39 (1992): 287-314. Joseph Schacht first makes reference to this maxim in a half-page discussion in his The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press. Juynboll. if the husband claimed the child. 10.and early Islamic societies. “The Muṣannaf of ʿAbd al-Razzāq al-Ṣanʿānī as a Source of Authentic Aḥādīth of the First Century A. See Harald Motzki. Qaḍāyā. Roman.In the end. Anfänge/Origins. assigning paternity was a significant problem of illicit sexual relations that resulted in pregnancy.” Journal of Near Eastern Studies 60 (1991). and ʿUmar would have felt the spiritual brunt of that decision. commanding instead simply that the son stay with the slave-driver who had actual paternity). idem.. ʿAlī returned the slavewoman to the initial owner but imposed no ḥadd punishment. see Harald Motzki. 117 For an excellent discussion. “Wal-muḥṣanātu mina n-nisāʾi illā mā malakat aimānukum (Koran 4:24) und die koranische Sexualethik. Ḥadīth: Origins and Developments (Aldershot: Ashgate Variorum. this case turned into one that was more about formalities surrounding paternity than actual infidelity. Crone. 96ff (collecting Schacht’s references in five other works. 1950). ed. Provincial and Islamic Law. see Qummī. 181-82.” Studia Islamica 78 (1993): 5-26. Roman.H. 128-30. Uri Rubin. and challenging his attribution of this maxim to Roman law).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. 2004) (Introduction).” Der Islam 63 (1986): 192-218.117 For a society in which status and social entitlements were determined on the basis of family and tribe. The paternity claim took precedence over the adultery accusation.H. the later paternity claim would have retroactively rendered that sentence erroneous. 126.A. 264 (second version) (addressing circumstances of a slave-driver having sex with a slavewoman while the actual master or owner is gone. idem. the ḥadd punishment for adultery could not have applied. Several scholars have focused on this maxim in their treatments of early ḥadīth literature to challenge Schacht’s initial characterization of it. and the Qurʾān’s sexual ethics emphasized regulating them. “Some Notes on Islam’s First Fuqahāʾ Distilled from Early Ḥadīth Literature. 10. and had ʿUmar carried out the sentence before the child was born. regardless of whether he had actually been present to father the child. see also Crone.116 Sexual relations were fluid in pre.

ʿAlī worried about imposing the                                                                   119 For a definition. 159. The stories are adduced to prove the validity of stoning and the necessity of imposing even that harshest of ḥadd punishments. claiming that the man had had sex with—or possibly raped—her. reluctantly imposes the ḥadd punishment. and raised him until the age of discernment. ʿUmar immediately decided to punish the man. note 103. she placed egg yolk on her clothes and then came to ʿUmar. 143    120 . or he helped engineer matters such that they would. But ʿAlī again intervened at the Anṣārī man’s request.119 where a husband accuses his wife of infidelity but she declares her innocence—both through oaths. 63. and thereby avoided imposing the ḥadd punishment that ʿUmar was so ready to impose. 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. She devised a scheme hoping to trap him into marrying her or else risk being punished. ʿAlī saved another man from ʿUmar’s quick and harsh judgment. there. nursed him for two years. the Prophet finally. here. ʿAlī’s judgment. 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. see above. Crime and Punishment.120 In second case. 195.imprecation (liʿān). But in those stories. but was unable to attract his interest. See also the brief discussion in Peters. both ultimately deferring judgment on the truth of the matter to God in the afterworld. 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. The husband’s eventual “admission” of paternity—however dubious—eventually served to cancel ḥadd liability. A woman in Medina took a liking to a neighbor (an Anṣārī man). presumably sentencing him to death (for adultery or rape). ʿAlī had a hunch that events would take this turn. Given the high stakes of criminal sanctions and of disassociation with any family. sought a pragmatic solution that would avoid the harsh consequences of a capital case on facts of which he could not reach 100% certainty.

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

see also Ibn al-Qayyim. 123 E. Tahdhīb al-aḥkām. he would take up with the orphan. Bināʾ al-maqāla al-Fāṭimiyya [fī naqd al-Risāla al-ʿUthmāniyya]).122 * * * In all of these cases. 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. the case of the pregnant woman above. See ibid. 146-47 (the case of ʿAlī followed by the story of Daniel) (cited in Kulaynī. The orphan grew into a beautiful young woman. 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. made her pay a penalty of 400 silver pieces. Kitāb al-ʿUthmāniyya and Ibn Ṭāwūs. She explained that the woman was raising the orphan with her husband.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. 145    . ʿAlī sentenced the wife to receive the ḥadd sanction for the crime of defamation. but they all refused initially. He asked each if she would retract her testimony. Ṭuruq. 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. 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. Ṭūsī. and other literary sources.separately. including Jāḥiẓ.. We held the girl while she took her virginity with her finger. notes 95-99 and accompanying text. fearing that when her husband returned from his travel. regular punishments for defamation and taking virginity. The corporal punishment and monetary fine are the expected. and separated her from her husband—marrying him to the orphan instead. As such. and that his judgment was following that precedent. who was often traveling on long trips for business. ʿAlī appears the cunning wise advisor. So she gave the girl wine to drink and called us for help with her scheme. Faqīh. respectively.. 84 (quoting Qaḍāyā ʿAlī). Kāfī. ʿAlī kept pressuring them to tell the truth until one woman looked up to ʿUmar and begged for immunity if she did.g. Ibn Bābawayh. and this caused the woman to feel insecure.

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

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

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).131 A similar ruling—this time involving ʿUmar again—was applied to a man from Yemen but living in Medina. 131 132 Ibid. 3:263-64. 132                                                                   130 Ibid. is the “ḥadd punishment. Qummī.. though it is unclear whether heterosexual or homosexual. as it was not Qurʾānic. 1991). Aḥkām al-Qurʾān. 548/1153). ʿAlī ruled that the man should get the lesser punishment of lashing (ʿalayh al-ḥadd wa-yudraʾ ʿanh al-rajm). ed.. Shahrastānī (d. ʿUmar sentenced him to death-by-stoning. 253-54. he said.g. note 165. see ʿAbd al-Qāhir al-Baghdādī (d. But ʿAlī said that the death penalty was not due here. e. 2:108. where he had committed adultery. (Apparently. See also below. Ibn alMalāḥimī (d. 429/1037). al-Milal waʾl-niḥal. the man had committed an act of zinā. 105. So the man was flogged and the death penalty avoided. n.. Manāqib and other works). Jaṣṣāṣ.” that is. note 90. 485. The sources note that only the Khārijīs. 68. insisting that stoning was not Islamic or Qurʾānic.). When evidence of the act was produced and the man admitted to being married. al-Farq bayn al-firaq.) Though the death penalty was taken to be the typical punishment for male sodomy or adultery. 248-49 (fa-julida jaldan wa-udriʾ ʿanh al-rajm) (citing Ibn Shahrāshūb. ed. See.130 ʿAlī also applied the ḥudūd maxim to avoid sentencing a married man to death for committing a sex crime while in prison. and discussion above. all that is due. In this way. because the man was away from his family.for defamation. which was in another country. 536/1141). ʿAlī did not view him as a married man who could satisfy his desires lawfully because he was not physically with his wife. al-Muʿtamad fī uṣūl al-dīn. Incidentally. objected to that characterization. flogging. ed. but was an exaggerated discretionary punishment (taʿzīr) that came to be thought of as the ḥadd punishment for adultery very early on. Wilferd Madelung and Martin McDermott (London: al-Hoda. Qaḍāyā. Muḥammad Muḥyī ʾl-Dīn ʿAbd al-Ḥamīd ([Cairo]: Maktabat Muḥammad ʿAlī Ṣubayḥ. in year 40 or after. which could be an echo of the idea that stoning was at some point not considered the ḥadd proper. this is one place where ʿAlī contrasts stoning with the appropriate “ḥadd” punishment.ḍ. Accordingly. ʿAbd al-Amīr ʿAlī Muhannā and ʿAlī 148    . For similar observations in the heresiographical literature.

Qummī. Masāʾil al-imāma. 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])). Accordingly. 69 (all cited and discussed in Hossein Modarressi. 133 E. 103. 12 (imposing ¾ of the ḥadd for a sex crime with a ½-manumitted slave).. but that if the matter is not brought to the authorities (the “Imām”). and then repents”). E. 135 136 134 E..g.134 imposing ever-heightened standards of evidence to prove sex crimes. ʿAlī announced several instances that require harsh sanctions.136 c. ibid.Several other cases depict ʿAlī avoiding harsh punishments through various means: pardons through accepting or imputing repentance to the defendants. 99 (ruling that the appropriate sanction for having sex with one’s mother was 100 lashes as harshly as possible to the bare skin. the perpetrator should repent and perform the ḥajj pilgrimage walking). 76 (forgiving a man for pederasty. ed.g. that was his means of displaying fidelity to God’s law and upholding Islamic moral values by observing the criminal laws. ibid. 149    .g. Qaḍāyā.g. 2009)..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. saying that “an Imām may pardon a man who comes to him. and against queries that he was neglecting ḥudūd laws (a-tuʿaṭṭil ḥadd min ḥudūd Allāh?).. The same concerns that led him to avoid the harshest ḥudūd punishments led him to issue rulings insisting on harsh punishments for certain behaviors. Ḥudūd Imposition: Reluctant Enforcement ʿAlī was not solely interested in ḥudūd avoidance. Wiesbaden: In Kommission bei F. Tārīkhiyyāt: Majmūʿa-i maqālāt va taḥqīqāt-i tārīkhī (Niyū Jirsī: Ayālat-i Muttaḥida. especially for violations of values otherwise not mentioned explicitly in the ḥudūd laws.. Josef van Ess (Beirut.133 announcing lesser.. For example. 1990). Steiner. 107. E. spiritually rehabilitative punishments for keeping crimes private in exchange for concealing one’s crimes from the court and other public spaces. confesses. ibid. pseudo-Nāshiʾ. he famously propounded an Islamic law “three-strikes” rule for repeat                                                                                                                                                                                                Ḥasan Fāʿūr (Beirut: Dār al-Maʿrifa. 105.. 1971).

Kāfī. Mustadrak [al-Wasāʾil]). 99.141 In that case. they may not—ʿAlī held—do so brazenly. 97 (noting that slaves. Wasāʾil..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. Tahdhīb.140 And the list goes on. although they typically are not subject to the requirements of Islamic law.. Daʿāʾim. filling the juristic treatises with instances in which punishments are due over and above those mentioned in the Qurʾān. are death-eligible on the eighth offense).. For example. 150    . al-Ḥurr alʿĀmilī.. 100 (citing Kulaynī. Wasāʾil al-Shīʿa. Ṭabarsī. Faqīh. Ibid. Kāfī. whether or not he is married (though an unmarried sex offender otherwise would typically be sentenced only to flogging). Muqniʿ. 76 (a-tuʿaṭṭil ḥaddan min ḥudūd Allāh?). because they are to receive half the punishment of free persons. 262. See ibid. al-Ḥurr al-ʿĀmilī. Ṭūsī. Daʿāʾim. Biḥār). Ibn Bābawayh. idem. al-Ḥurr al-ʿĀmilī. Qāḍī Nuʿmān. Kāfī.138 A rapist always receives the death penalty.. 141 140 Ibid. 99 (citing variations in Kulaynī. Majlisī. Qāḍī Nuʿmān. 100 (citing Kulaynī. while non-Muslims may freely drink wine in Muslim lands. The more serious the moral offense—such as male sodomy and multiple-repeat offenses—the harsher the punishment. 138 Ibid. Another exception is wine-drinking in public. Wasāʾil al-Shīʿa). 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.139 Non-Muslims receive the full ḥadd sanction for defaming Muslims. But in                                                                   137 Ibid... cf. 139 Ibid. the defendant himself asked ʿAlī incredulously whether he was suspending the criminal laws.offenders: a repeat convict of fornication was death-eligible after the third offense. ibid. when ʿAlī pardoned a man for pederasty. 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. idem. Istibṣār.

85. then take care of him if there was no one else to do so. 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. One episode has it that a woman came to him confessing adultery and requesting the associated penalty. Ḥurayth—volunteered to raise the child himself and announced that fact to ʿAlī. the idea that she was the only one who could care for the child). Unwittingly. ʿAlī sent her away with another excuse: she should nurse the child for two years. ʿAlī sent her away.” Accordingly. As it happens. that her husband was not absent. and each time she did so. 151    . So he commanded all the people to gather for afternoon prayer on the outskirts of Kufa. thinking that he was alleviating the latter’s concern. The reality was quite to the contrary..142 ʿAlī started down his normal track of trying to avoid the punishment. then raise him until he reached a certain age. 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. telling her to wait until she had delivered the baby. ʿAmr had taken away ʿAlī’s last appeal to mitigating circumstances (i. one community member— ʿAmr b. where he was unable to do so. and the woman informed him that she had committed the act while married. He asked about her circumstances to find some mitigating cause. the sources depict him as imposing the ḥadd punishment reluctantly. and that she was pregnant.. 80.other cases.e. proclaimed that he was following the dictates of “God[’s] covenant … with                                                                   142 Ibid. The woman came back multiple times thereafter.

until only he remained with his two sons. He espouses the rules of harsh punishment in the books of Shīʿī law. Faqīh. he dispersed the people. Those three presumably imposed the ḥadd. Kulaynī. 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. Kāfī. Ibn Shahrāshūb. 85-87 (citing variants in Barqī. al-Ḥurr alʿĀmilī. 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.Muḥammad (ʿahd). 85-87 (cited in Qummī. Musnad. which he [had] passed on to [him]” to enforce ḥudūd laws. then repent to God privately.. though the report introduces some doubt about just what happened by noting that there was no one there to witness it. Manāqib. Kulaynī.” that had to be imposed. ʿAlī eventually announced to the people that this was one of the “claims of God (min ḥuqūq Allāh). Ṭūsī. Bajalī. for [I swear] by God. For this trend in Sunnī law. 80. 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. See Qummī. Kāfī. Ibn Bābawayh. Qaḍāyā.1-2. Ibn Bābawayh. Faqīh. and other sources). and he presumably carried it out along with his two sons. Zayn al-Fatā. Wasāʾil. ʿAlī similarly sent him away several times. until the man had come back four times. Part III. pseudo-ʿĀṣimī. Wasāʾil al-Shīʿa. see below. Mustadrak al-Wasāʾil. A similar story is told of a man who confessed to adultery and came to ʿAlī asking for the associated punishment. Maḥāsin.C. but announced that people should repent privately for crimes that God has kept private. Ṭabarsī. ʿAlī’s bark as a legislator or commentator on the law is worse than his bite as a judge. Tafsīr. 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. al-Ḥurr al-ʿĀmilī. Tahdhīb alaḥkām. and other sources). pointing to the moral values behind criminal legislation. But in ʿAlī’s judgments. 152    . Curiously. repentance to God in private is better than destroying oneself and throwing off His concealment [of you]!”143 This case notwithstanding.

infallible Prophet and Imāms—to meet. In Shīʿī and Sunnī law. characterized by harsh legislation but lenient application. 153    . only to require that the accused be dealt with flexibly. and that of the alleged murderer.) In underscoring these tendencies. presided over by the Prophet. and observe the parallels between the case of the alleged rapist. 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. 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. and more often than not. usually one involving adultery. these records of ʿAlī’s criminal law judgments thus not only present him as an exemplar of justice. presided over by ʿAlī. 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. that it is more important to defer the actual judgment to God. It is a jurisprudence of doubt that claims for the jurist wide jurisdiction over criminal law matters. and expressed extreme moral anxiety at taking a life—the highest of values—without clear authority or divine sanction to do so. but also claim the moral high ground on two fronts. The result: a juridical policy in which judges are to actively seek those doubts when faced with a death penalty case. (Recall ʿAlī’s reluctance in the above cases mirrored by the Prophet’s reluctance in the Case of Māʿiz. this results in ḥadd avoidance. ʿAlī and Muḥammad have assumed the same position with the same orientation to criminal cases: both are exemplars of justice.

In brief. 751/1350). he focuses on the Prophet and ʿAlī as exemplars. 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. To do that. Generalizing Death-is-Different: Jurists as Opposition to FairnessDisregarding Overcriminalization In the legal literature. A primary case in point is the treatment of criminal law by Ibn Qayyim alJawziyya (d. 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. in his work of legal theory cum judicial manual—al-Ṭuruq al-ḥukmiyya fī ʾl-siyāsa al-sharʿiyya. Ibn al-Qayyim emphatically answers “yes” to the question whether judges should rely on judicial acumen in legal rulings: they can and they should. or doubt. 145 Notably. the illustrious Ḥanbalī jurist-scholar. 2. “The Saint as Exemplar in Late Antiquity.” Representations 2 (1983): 1-25. 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. The centerpiece of his argument is to define just what judicial acumen is. 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 …?). 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. The work focuses on the role of the judge. and was prompted by a single question: can a judge rule by his judicial acumen (firāsa).145                                                                   144 Ibn al-Qayyim. See Peter Brown. the tendency toward ḥudūd avoidance—highlighted most in ʿAlī’s judgments—eventually generalizes beyond the ʿAlid context and beyond the death-is-different jurisprudence.3. 11 (“What is 154    . Ṭuruq. 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.

in A History of Education in the Ancient World.In the process. where ʿAlī is indeed advising ʿUmar toward lenity. 96-101. pp. … [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. advising ʿUmar. ʿAlī is not mentioned per se. Ibn al-Qayyim. Ṭuruq.”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. “and that. it can also refer to any of the numerous cases presented in Qummī’s Qaḍāyā. G. with ʿAlī as its chief proponent-exemplar. “is the most subtle degree of judicial acumen (min daqīq alfirāsa). 148 Ibn al-Qayyim. approaching ḥudūd rulings. and always being careful of both the moral imperatives of the law and the idea of judicial subservience. The bulk of the remaining discussion draws on familiar Sunnī sources.”) (citing Henri-Irenée Marrou. 82. Lamb (New York. 34-97. with pp. though in those cases. 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. 67ff and 82ff quoting from the judgments of ʿAlī. 147 This can refer to the case discussed above in which ʿUmar avoids punishing the mysteriously pregnant woman.” Ibn al-Qayyim commented. but ʿAlī is ever at the center of the discussion. 217-26: describing the “Civilization of the Paideia”). 1956). Ibn al-Qayyim devotes a section to the ḥudūd maxim. see above.” 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.146 In elaborating the meaning of judicial acumen. After quoting the standard formula. “avoid criminal punishments in cases of doubt (idraʾū ʾl-ḥudūd biʾl-shubahāt). 155    . tr. Other Companions are mentioned. 146 See. Ibn al-Qayyim illustrates how jurists recount and universalize the theory of ḥudūd avoidance based on the death-is-different jurisprudence.147 So ʿUmar avoided imposing the ḥadd. Ṭuruq. 37-39 (two versions). in particular.

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

but was likely excluded because the content (matn) was so questionable (fīh iḍṭirāb). just as in the case of Māʿiz. the Yemeni woman involving the house servant (ʿasīf). 87 (he says that there were six individuals.likely because of this confusion. 157    . Ibid. 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. much more so in Sunnī and Shīʿī regard alike)—is guided by the policy of avoiding ḥudūd punishments. In this case.. 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. 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. 2:107. Ibid. Moreover. 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. and the two Jews who came to the Prophet requesting punishment for adultery). 86. helps us resolve debates over what happened historically..156 Most telling about this discussion for our purposes concerns a factor that Ibn alQayyim does not mention explicitly. the Prophet must have been operating on the knowledge that the perpetrator had repented. which—in the sounder of two Ḥanbalī opinions—would remove ḥadd liability. see Jaṣṣāṣ. 3:256-58. and this is not one of them. Aḥkām al-Qurʾān. For a longer list. This policy. 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. 87. he says. 156 155 Ibn al-Qayyim. the Ghāmidī woman. All cases in which the Prophet purportedly ordered stoning are known and limited to five cases. presided over by ʿAlī). Ibn alQayyim seems to be saying. Ibn al-Qayyim concludes that the person reporting the story was mistaken. Ṭuruq. at least in death cases.154 Ibn al-Qayyim is fairly certain that the Prophet did not stone the perpetrator here.155 Instead. but only lists five: Māʿiz.

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. for Ibn al-Qayyim. Yet. Ibn al-Qayyim sees the ḥudūd maxim (albeit not in standard form) as a central maxim of criminal law. See Ibn alQayyim. To be sure. for example. such as pregnancy as indicative of zinā or the scent of alcohol as evidence of wine-drinking. he discusses theft as another area of ḥudūd avoidance in cases of famine. 89 (fa-inna ʾl-ḥadd yudraʾ ʿanh wa-law ḥakama bih). 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. Importantly. 88.”159 Thus.157 To the contrary.158 Even after a judge has sentenced an accused woman to stoning on the basis of quadruple testimony. the law and the superior judicial acumen                                                                   157 Ibid. 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. doubt functions as the determinative factor in criminal sentencing even beyond the death context. 1:104 (al-ʿuqūbāt tudraʾ biʾl-shubahāt). those forms of evidence were preferred. “[The judge then] is to avoid the ḥadd punishment [in such scenarios] even if he has ruled that it otherwise applies.” Ibn alQayyim.contradicts any basic Islamic legal principles (uṣūl al-sharʿ). 159 160 As noted in Chapter 1. 158    . ḥadd liability is removed.. But the early authorities had held that circumstantial evidence could warrant ḥadd liability. as precedent. should be followed in the future. Ṭuruq.160 For him. 158 Elsewhere. 3:15 (maʿa ḍarūrat al-muḥtāj). if it becomes apparent that she is a virgin or that the witnesses are untrustworthy. Iʿlām. Iʿlām. 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. Ibn al-Qayyim.

iḥṣān requires that a husband and wife be both married and available to one another. note 131 and accompanying text (Appendix. See Abū Ḥāmid al-Ghazālī. reject the maxim. see Chapter 1. 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 As detailed in the next chapter. 1997). The dominant Shāfiʿī opinion regards acts of male sodomy acts as zinā rather than as separate crimes. murder. as outlined in later legal literature. al-Kāfī fī fiqh ahl al-Madīna al-Mālikī (Beirut: Dār alKutub al-ʿIlmiyya. necessity (ḍarūra). Accordingly. they apply the maxim to all types of criminal law: crimes that warrant the death penalty (adultery. Aḥmad Maḥmūd Ibrāhīm and Muḥammad Muḥammad Tāmir ([Cairo?]: Dār al-Salām. For discussions. and the public interest (maṣlaḥa). 1:314-15. al-Baḥr al-rāʾiq. notes 106-107 and accompanying text. 11:5910-16 (presenting and adopting the former opinion). Ibn Nujaym. Case no. Ṭuruq. 2002?). on the other hand. for example. al-Wasīṭ fī ʾl-madhhab. ed. and adopting the latter). For the sex crimes listed here. Mālikīs categorize male—but not female— sodomy under the rubric of zinā. For further discussion. See Qudūrī. male sodomy)165 and crimes that do not                                                                   161 Ibid. 162 163 See discussion in Chapter 5. 1073. a married man who is imprisoned will not be deemed to meet the conditions for iḥṣān. Section II. as do Akhbārī Shīʿīs. rape. The other mainstream Sunnī and Shīʿī schools do as well. 13-15. 159    165 .required in applying the law obligate ḥudūd-avoidance in certain situations like the ones enumerated here.162 Ibn al-Qayyim places restrictions on the operation of the ḥudūd maxim. Mālikīs and Shāfiʿīs—for applying the maxim expansively at the first sign of potential doubt and without a basis in text or precedent. and Chapter 5.161 Like other Ḥanbalīs (some more so than others). See Ibn ʿAbd al-Barr. he criticizes the other Sunnī schools—Ḥanafīs. 2:1069. 164 The Ẓāhirīs. See Ibn alQayyim. 5:17 (presenting both opinions.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. In Shīʿī law..) In addition. male sodomy is not always categorized as an independent ḥadd crime warranting death. 24). 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. Tajrīd. 440-41. 3:11. which is typically equated with marriage but encompasses much more. as demonstrated in ʿAlī’s case above. 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). a condition is often iḥṣān.C. see Chapter 2. (Thus.

where one would expect conservative Sunnī law to be anti-ḥudūd maxim and anti-Shīʿī (as was. Not only does he include records of ʿAlī’s judgments from the Shīʿī community in his examples. Majid Khadduri.” George Washington Law Review. 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. Ibn al-Qayyim surprises. Ḥadd-avoidance. even this most conservative school of Ḥanbalism. At first blush. defamation. * * * As constructed by the jurists and settled in this compromise. the preceding sets of cases are mutually reinforcing. 160    . e. and a host of other less clearly specified crimes carrying discretionary penalties). “Nature and Sources of Islamic 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. wine-drinking. 22 (1953): 3-23.g.(theft. his teacher Ibn Taymiyya).166 but draws widely on interpretive schemes of all schools of Islamic law. but he also extends the principle of ḥudūd avoidance beyond the death context. for example. standing at the center of the criminal law jurisprudence of both. * * * 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. 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. See. 18. is thus a central marker of high-level judicial acumen. That is..

ʿUmar. 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. a third line of cases draws a line between private and public. Private Vice In addition to the competing tendencies toward ḥudūd enforcement and ḥudūd avoidance. There. As intimated in the ʿAlid judgments. and issues of public morality are all implicated in plain view. implicitly. explicitly. On a closer look. Rather. the authority of the ruler.reason offered was to accommodate social hierarchies. distinguishing between the first two categories on that basis. 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. the ḥudūd maxim. this line encouraged people to conceal vice so as not to raise the question of ḥudūd enforcement in the public space. These conditions suggest that the jurists are concerned with the public and political realms. they seem not to have been so for the jurists. More generally. in the accounts analyzed thus far. A Mixed Bag: Public Virtue. the rule of law. But if these were the motivating forces of the political elite in the early period. communicate a general rule of mandatory ḥudūd imposition. 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. The aim was multivalent. the Prophet. initially. including both social- 161    . Thus. These sayings emphatically affirm an orientation toward ḥudūd imposition once a criminal accusation is brought before the court and proved. and the modified aqīlū saying (with the ḥudūd exception). taking courts to be the epitome of a public forum. What does this mean for ḥudūd jurisprudence? C. at least.

surely God is [quick to] pardon. 49:12 (prohibiting spying: tajassus). see Qurʾān. and encouraging Muslims to cover the faults of their wrongdoing brethren. 168 See Cook. 2:189. he also noted that the Prophet gave the following advice. Privatizing Vice To return to the Case of the Drunken Orphan. so pardon and overlook [the faults of others]! Do you not wish for God to forgive you? For God is most forgiving. Some examples will illustrate the point. 4:24 (noting that he deems this ḥadīth authentic even though Bukhārī and Muslim did not include it in their collections). surely it is improper for the imām. Mustadrak. Commanding Right. 80-82. This was an expression of an early Islamic notion of privacy. 100. most merciful.168                                                                   167 Al-Ḥākim al-Naysābūrī. when a ḥadd crime is raised to him. regulating the entry and exit of homes. aside from the ruling of ḥadd liability. For the Qurʾānic verses. In fact. 380.”167 The sources report the Prophet and other early authorities emphasizing this sentiment over and over again. 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. Even as Ibn Masʿūd observed that the law required him to impose the sanction for drunkenness. 1. encouraging people not to bring ḥudūd matters to the courts: Do not be helpers to Satan on behalf of your brother. there were other dicta at play. 24:27 (on entering the home).institutional and spiritual-moral concerns. 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. 162    . which appeared first in Qurʾānic verses and prophetic ḥadīths prohibiting spying. and loves pardon. to do anything but impose [the ḥadd].

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

Abū Dāwūd. They frequently expressed it through another maxim-cum-ḥadīth that.937 (Arabic text: taʿāfaw fīmā baynakum qabla an taʾtūnī fa-mā balaghanī min ḥadd fa-qad wajaba). no.”176 And ʿAlī expressed similar sentiments. Nasā’ī. 4885. see ibid. no. For more cases that involve criminal law. 6211. but to no effect. The Prophet instructs: “Overlook (taʿāfaw) [wrongdoings] that occur amongst you [privately]. nos. 85-87. ʿUqba told him not to do this.His secretary. 8:70. cautioned people to conceal faults. repentance to God in private is better than destroying oneself and throwing off His concealment [of you]!”177 In so saying. no. no. 4376 (with al-ḥudūd inserted between taʿāfaw and fīmā). So do not expose that which is hidden from you. jurists of the later periods encouraged community members to be discreet with criminal offenses. al-Muʿjam al-awsaṭ. 10:229. so he again proposed to call the police. 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. 4:133. Dukhayn al-Ḥajrī. For people [inevitably] have shortcomings. 80ff and passim. (citations omitted) (noting that the traditions makes reference to the pre-Islamic practice of female infanticide (waʾd). 17. no. 164  177   . 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. 4886. al-Ḥākim al-Naysābūrī. explained to him that he had neighbours who drank wine. 4:424.175 With such anecdotes. Ṭabarānī. See also Bayhaqī. 8:331. cf. 80. He did so. almost as if to avoid prosecution. it is as though he had restored a buried baby girl (mawʾūda) to life from her tomb. and quoted a tradition he had heard from the Prophet: “Whoever keeps hidden what would disgrace a believer (man satara muʾminan). 176 ʿAbd al-Razzāq. 8156. Sunan. 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. but rather to counsel and threaten them (verbally). and proposed to summon the police (shuraṭ) to arrest them. Muṣannaf. ʿUqba once more told him not to.389. for any ḥadd matter that reaches me [for adjudication] requires imposition of the punishment. repent to God privately! For [I swear] by God. before they are brought [to my attention]. and the ruler is the most appropriate person to cover them (al-wālī aḥaqq man satarahā). Sunan.. like the aqīlū saying. Mustadrak. note 143 and accompanying text. 6:210.                                                                   175 Ibid. Qaḍāyā. Qummī. above. 18.

”). this source is of dubious provenance. Tuḥaf al-ʿuqūl. Justice. 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. And do not be quick to believe the backbiting informant [who tells you about people’s faults]. p. … Overlook anything that is not [already] apparent to you. and avoid ḥudūd sanctions in cases of doubts or ambiguities: wa-ʾdraʾ al-ḥudūd biʾlshubahāt. there was a willingness to entertain claims or even slight indications of repentance after sentencing. jurists were attempting to stress the spiritual-moral element of ḥudūd violations on the individual and private levels. Nahj. letter no. 53. Out of conviction that “the law had to be protected from excessive and arbitrary uses of coercive force by the repressive state apparatus. Repentance was always an option so long as offenders did not publicize their crimes. The version by Ibn Shuʿba also includes the ḥudūd maxim— though as noted in Chapter 1. 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. for [such] informants are surely treacherous. And even once they did. Punishment. even if they resemble [sincere] advisors. 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). 128 (“Accept excuses. 179 See Lange. and God will guard that which you wish kept private from your subjects. as expressed through earlier precedents.” they created a private sphere as distinct from a public one in areas of criminal law.179                                                                   178 Al-Sharīf al-Raḍī. See Ibn Shuʿba. 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. 126-49. but it also emphasizes the role of the juristic interpretations of the law rather than individual perceptions of it.178 By emphasizing personal culpability and concealment.and guard [the people’s] privacy to the extent possible (wa-ʾstur al-ʿawra mā ʾstaṭaʿt). 165    .

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

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

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

See. religion. at a time when conversion entailed a change in political loyalty.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. lineage. Apostasy laws help maintain Islamic religious identity.e. 1:269-70 (citing the ḥuqūq tradition). And the laws against theft.186 With these interests in mind. e. Prohibitions on intoxicants helped preserve the sanity or intellect (also here: dignity) of individuals and public space. Sexual misconduct is a good example. and property (listed in order of importance). Furūq. sanity (or intellect).e. Rules against sex crimes helped preserve ties of lineage and honor—which the sources reveal to have been extremely important in medieval Arab societies. a violation of the                                                                                                                                                                                                 reasoning to justify rules that had no basis in the Qurʾān or Sunna). On this view. 169    . 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.g. they simply added onto it. fraud. Once it reached the courts. Qarāfī.. They mapped these values onto criminal law rules as the prime example and method of promoting these values. jurists convey a sense that ḥudūd crimes go far beyond offenses against individual victims. 186 See above. they also infringe on the sense of security and preservation of Islamic law’s five core values. 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.. note 17 and accompanying text. That their rulings espoused a developed reading is not to say that later jurists dropped the earlier theological notion. jurists treated adultery less as an offense against the faithful spouse—i. a violation of a private interest.. highway robbery and the like promote the sanctity of private property.

Texas. 188 E. Constitutional Law with the Inherent Right of Privacy in Islamic Jurisprudence.” Fordham International Law Journal 27 (2003):370 (describing privacy laws that barred the Muslim state from pursuing and prosecuting non-public sex crimes. as reflected in their narrow construction of ḥudūd offenses and the heightened procedures required to secure a conviction. e. 4:129. The gravity of the crime and its high stakes still made jurists tread cautiously.g. Ḥāshiya. and place of the act. See. Yaḥyā al-Muzanī. in line with the taʿāfaw and satr traditions. and the Death of Morals-Based Legislation: Comparing U. that is. 189 E. Some also determined that judges may only impose punishment with non-coerced. 23: 19. ʿAlī Aṣghar Murwārīd (Beirut: Dār al-Turāth and al-Dār al-Islāmiyya.190 In other words. 9:276. sworn confessions or testimony from four witnesses to the act of penetration.g. uniform testimony as to the details of the time.g. including rules restricting the acceptance of confessions. 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. Maḥmaṣānī.public interest.S. Marghīnānī. 9:43-106. Falsafat altashrīʿ. 325-76.S.. Ḥusayn ʿAbd al-Ḥamīd Nīl (Beirut: Dār al-Kutub al-ʿIlmiyya.” 291-332. Jurists further interpreted these texts to severely circumscribe means of valid prosecution in other ways. with comparison to recent change in American law announced by the Supreme Court in Lawrence v. they constructed an elaborate law of privacy designed to prevent the political authorities from prosecuting anything but brazen. Commanding Right. through combining doubt jurisprudence with a robust privacy doctrine. Hidāya. Hidāya. “Penumbras. 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]). 8-19.188 Moreover. Abū Ibrāhīm Ismāʿīl b. and limiting the use of circumstantial evidence. Cook. for “whoever publicizes or makes known his sexual transgression incurs [eligibility for] the ḥadd punishment”). Tabyīn. Sarāʾir. 558 (2003)). Bājūrī. which triggered the cautious ḥudūd jurisprudence of doubt when there was no clear victim. Some limited the definition of fornication to the literal terms of a sex act between a man and a woman. Sarakhsī. For a useful discussion of how privacy laws played out in sodomy cases.. Privacy. public criminal acts. 170    190 . Mabsūṭ. 80-82. ed. 4:432 (noting exceptions to the Sunnī bar on judicial determinations by private knowledge for offenses against ḥuqūq Allāh). jurists encouraged sex offenders not to disclose their illicit affairs. in YF. Ibn Bābawayh. Zaylaʿī. manner. 3:537. 1993).. “Private Domestic Sphere. see Alshech. see Peters. ed. 539 U. multiple. see Seema Saifee. For basic overviews of criminal procedure.187 They instituted a host of additional evidentiary safeguards as well. Ibn Idrīs al-Ḥillī. Mukhtaṣar. Crime and Punishment. On privacy doctrines in Islamic law.189 In the process. 384 (arguing that anyone who commits zinā or a related crime should keep it private and repent privately. 1990). disallowing verdicts based on judicial notice..

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

jurists attempted to acknowledge the state’s sphere of jurisdiction over public space but to limit its inevitable encroachments and abuses. 1:224) (other citations omitted). e. 172    .Kāsānī.”193 Imposition and avoidance were ever the tendencies requiring balance. Aḥkām al-Qurʾān (Beirut: Dār al-Fikr. e. Abū Bakr al. Theologie und Gesellschaft.. ḥudūd laws represented rules of public morality. See. 1968). ed.. As they sought to limit the reach of the state. in the latter conception. 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. Ḥanbalīs made it exclusively private. for example] refuses to have anything to do with [the caliph] al-Mahdī’s suggestion that they join forces ….. and Mālikīs opined that the private aspects of the act preponderated. Ḥanafīs deemed it to be more of an exclusively public crime.g. What we have here is rather a characteristic example of [the jurist’s] sullenness toward the authorities—his ‘Staatsverdrossenheit’. as van Ess has dubbed it. e. 3:344. Ḥāwī. 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. 82 (quoting van Ess. Muqniʿ. 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. It is not out of concern for privacy that [one jurist. Ibn Qudāma. Shāfiʿīs categorized defamation as almost exclusively a private offense.). 3:1123. 378. Badāʾiʿ alṣanāʾiʿ fī tartīb al-sharāʾiʿ. Commanding Right. al-ʿArabī. at 1:212-13. n.g.g.At some remove then from the theological notion of ḥudūd laws-as-moralobligation. Aḥmad Mukhtār ʿUthmān ([Cairo]: Zakariyyā ʿAlī Yūsuf. these developments encapsulated a legal-political notion of ḥudūd laws. Mughnī. Their uniform “stand in favour of privacy is reinforced by a marked element of hostility and mistrust directed against the state. Abū Bakr b. Ibn al-Bannāʾ. 12:27778. See.d. 193 Cook. Māwardī. See. 9:4212-13. Inasmuch as.

173    . they typically concluded that the private interest had the upper hand. One scholar explained that the ḥudūd maxim “takes precedence … because the greater interest (of                                                                   194 See. The rationales that jurists later elaborated for this position are recounted at length elsewhere. e. and (2) spiritual purification or rehabilitation ). in the public sphere. like courts.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. suffice it to present a few statements in this regard. Shāfiʿī. For now.and protecting individual interests but. 8:288 (describing two purposes of ḥudūd laws as (1) severe punishments designed to deter crime. In other words. 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. Their jurisprudence held that doubts as to the scope of the law or the evidence raised questions about individual culpability. Ḥāwī. 1:99 (“Ḥudūd are punishments by which God deters (zajara bihā) people from committing prohibited [acts] and encourages them to follow [His] commands. 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. when they placed the more specific private interest against the non-specific public interest. Māwardī.194 Accordingly.. Umm (1993).”). which in turn raised questions about the validity of punishing an individual whose conduct was only dubiously criminal or who was only dubiously liable. 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. but operated less expansively when private interests (ḥuqūq al-nās) were involved. In other words.

Ibn Abī Shayba. Bayhaqī. could not—assume sweeping religious authority over the law. For details and citations. an oft-quoted version of the ḥudūd maxim says the exact opposite: “Avoid imposing ḥudūd punishments on Muslims as much as you can. 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.the law) is in preservation of life. the value placed on private interests and the high stakes of the ḥudūd convictions require ḥudūd laws to be construed narrowly.197 The point. 196 197 198 Ibid. Appendix. In fact. ʿUdda. jurists concluded that the law used the threat of ḥudūd sanctions to deter and punish proved criminal offenses. 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. contained in the collections of ʿAbd alRazzāq. * * * The caliphs did not—and. he said. then release him.g. 683-84 (fa-wajaba an yatarattab al-ḥadd ʿalā ʾl-taʿāṭī al-muṭlaq). This is the most common version the maxim in ḥadīth works. if there is an exculpating cause for [the accused]. and devolve to ḥudūd enforcement as a final resort for offenses against public morality. Wansharīsī. 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. 174    ..”195 Moreover. no doubt. 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. 2:279-80 (giving the example of a marriage of disputed validity).”198 Consequently. Version 2. jurists said. as it is better that the Imām make a mistake in pardoning than in punishing.”196 In other words. Tirmidhī. Qawāʿid. E. so [may not be] imposed except and unless there is a complete crime established. see Chapter 1. “ḥudūd [sanctions] are harsh.

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. At the center of these discussions. to name just two. would result in the absence of the rule of law and societal descent into utter chaos. the recognition of Abū Yūsuf’s authority as a jurist to articulate matters of public law that bound the caliphs. Punishment. jurists feared that neglect of ḥudūd laws would create a society that could not claim to be following God’s law. 250 (including enforcement of ḥudūd laws in a list of ten public duties that the state authorities must fulfill). ḥudūd laws served as a bellwether for the legal system as a whole and the rule of law according to divine will. when it was put to the test. 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. Between the governmental branches and the jurists. 200 This second fear appears starkly in a later period.199 Given their rootedness in foundational texts and the nexus between juristic and political spheres of jurisdiction. See Lange. 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. amongst a short list of other public laws of shared jurisdiction. and moreover. 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. Nor could the jurists exercise sweeping authority over public law. In that liminal space.200 The arrangement around which this question settled was one of at first contested and then shared spheres of jurisdiction. 244-46. Justice. was criminal law.proposal to place law under the authority of the caliph. 175    . al-Aḥkām al-sulṭāniyya.

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.201 Despite their continuing attempts to define the law and critique the state. Defining Doubt Jurists and political rulers championed two different sets of interests surrounding issues of morality and authority over law. we have seen that jurists functioned as the “pious opposition” to what they perceived as political excesses in criminal law and elite social norms. 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. their moral anxieties about imposing the death penalty also led them also to oppose fairness-disregarding overcriminalization. They opposed the state’s status-reinforcing under-criminalization by which high-status offenders were absolved from criminal liability. Where the latter institutionalized hierarchical norms and sought to maximize their authority over the law and the public sphere. In this vein. al-Aḥkām al-sulṭāniyya (delineating the duties of jurists versus the political authorities—the former charged with interpreting the law. 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. And in the process of elaborating the law.rhetorically if not always in fact. 3. and notwithstanding the state’s nod to their authority to do just that. proved with                                                                   201 See generally Māwardī. 176    . the former sought to curb it.

the avoidance tendencies in ḥudūd jurisprudence spread beyond the capital context to ordinary crimes as expressed in the ḥudūd maxim. 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. and without mitigating factors to remove criminal liability. 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. judges appealed to the doctrine of doubt. Through generalizing death-is-different jurisprudence. The maxim at once represented the jurists’ attempts both to maximize their own authority vis-à-vis state excess and encroachments on religious law. 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.certainty. In the end. Though the initial concerns behind the additional procedures were perhaps more personal and political than concerned with defendants’ “rights” per se. 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. Islamic criminal law was less about what the text said. and to ameliorate tendencies toward ḥudūd imposition. Shubha focuses on the insufficiency of the evidence. and more about how the jurists and the state would proceed when 177    . This was a tall order.

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. taken on a case-by-case basis. to understate the case. Juristic interpretation depended on hermeneutic methodologies developed by the jurists as they navigated socio-political demands and moral-divine ones. 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. Until now. at best. 178    . we have seen instances of shubha in the common law-like way that it arose in the early Islamic context. * * * The meaning and circumstances defining shubha are so far. less anxious about the moral-legal imperatives occupying the jurists’ attention. 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. Actual application was often harsh and marginally responsive to those concerns as political authorities seemed.confronting situations about which the text did not say very much.

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

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

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

Simāja al-Sanhājī (d. Kitāb aʿmāl aʿlām II. See Ch. son of the Prophet’s adopted son. ca. 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. for which Usāma b. Andalusian judge. Zayd. 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.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. Zīrid vizier Ifrīqiya [Tunisia] Winedrinking Avoidance Ḥadd sanction: 80 lashes Sentence: No sentence imposed Ibn al-Khaṭīb. 20. pp. 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). 26-27. note 56. 2. fiqh treatises 182    . attempts to intervene on behalf. 63. See Ch. 2. 2. p. 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). 1090). note 56.

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

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

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

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). ʿUmar ʿAlī Judge Imposition Avoidance Place [Medina] Ḥadd Charge Zinā Decision Avoidance Ḥadd sanction: death by stoning Sentence: No punishment of stoning imposed. Qaḍāyā ʿAlī. mid3rd/9th c. 2. 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. the first husband returns and accuses her of committing zinā. See Ch.).). Qaḍāyā ʿAlī. mid3rd/9th c. and has a child with the second man. Qaḍāyā ʿAlī. 186    .III. the owner returns and accuses the slave driver of zinā. See Ch. she accuses him of rape. mid3rd/9th c. 2. p. 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. See Ch. 49. Shīʿī ḥadīth collections Ibrāhīm alQummī (d. Shīʿī ḥadīth collections Sources Ibrāhīm alQummī (d.). 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. 4647. p. 47. pp. note 108. the child stays with the slave driver. 2. 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.

pp. payment of 400 silver pieces [for puncturing the orphan’s hymen. severity with evidentiary infirmities Ibrāhīm alQummī (d. Qaḍāyā ʿAlī. Stated rationale: [constructed] false testimony/perjury Imputed rationale: moral anxiety with the death penalty. 179/795). pp. [In Version 3. 1.). 2. pp.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. 49-50. prompting the woman to perjure herself. against which he counters he had her permission. wife is sentenced to the ḥadd punishment for defamation [80 lashes]. 2. mid3rd/9th c. she enlists her neighbors’ help in framing the orphan by puncturing her hymen and then accusing her of having committed zinā. 1. Ch. 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). Muwaṭṭaʾ (citing ʿUmar as judge who avoided) . ʿUmar tells the wife that he will stone the man for adultery. 53-54. See Ch. 80 lashes for defamation Sentence: No punishment for the husband (all Versions). 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. mid3rd/9th c.] See Ch. 52-53. Shīʿī ḥadīth collections Mālik (d. 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]. Ch. 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. ʿUmar ʿAlī Imposition Avoidance [Medina] Zinā Avoidance Ḥadd sanction: 100 lashes or death by stoning Sentence: No punishment imposed on the orphan.). Qaḍāyā ʿAlī.

See Ch. ʿAlī [Kufa] Zinā defamation (Versions 2. severity Ibrāhīm alQummī (d. ʿUmar ʿAlī Imposition Avoidance Medina Zinā Avoidance Ḥadd sanction: Death by stoning for adultery Sentence: 100 lashes for fornication. 53. Qaḍāyā ʿAlī. For other judgments of ʿAlī. Shīʿī ḥadīth collections CASE 25-[Case of Sex while Traveling] A married man from Yemen commits zinā while traveling in Medina. 54. p.pp. 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. 1. Shīʿī ḥadīth collections 188    . 1. p. guilt is not at issue. 53. 3) Avoidance Ḥadd sanction: death by stoning for adultery Sentence: 100 lashes for fornication. CASE 24-[Case of Sex in Prison] A married man commits zinā in prison. 52-53 (Version 3). 2. See Ch. Qaḍāyā ʿAlī.). p. but avoidance of stoning for adultery Ibrāhīm alQummī (d. mid3rd/9th c. mid3rd/9th c. see also Ch. 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.).

Recognizing that both tendencies existed and that the ḥudūd and other maxims were the pithy but normative 189    .CHAPTER 3 Ḥudūd Avoidance vs. Imposition amongst Early Jurists: Methodology and Doubt I. which was seen as the public-moral sphere of shared jurisdiction between juristic and political authorities. Intercession. These concerns both reflected and responded to the jurists’ relations to the political authorities and to their policies. 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. and overlooking acts of wrongdoing were typically available only before the matter came into the court. pardon. Jurists uniformly agreed on the mandatoriness of applying ḥudūd laws. 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. In that realm. they had to make sense of the competing early precedents in criminal law of ḥudūd imposition and avoidance. there was a case for ḥudūd avoidance only when there was a case for doubt (shubha). These jurists were mostly concerned with judicial subservience to divine will and Islamic law’s substantive moral imperatives. 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).

came into their own. This chapter examines juristic conceptions of the ḥudūd maxim in some major extant legal manuals of the first three to four centuries. concerned as they were with epistemological certainty in interpreting and applying God’s law. Gradually. 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. Yet it is only after this period (beginning in the 4th/10th century) that identifiable professional legal schools. as we will see. we saw previously that judges and jurists alike recognized the ḥudūd maxim. and when was it not? It was the task of jurists to sort this question out. Given the anecdotal cases in which the ḥudūd sanctions were imposed at times but avoided at others. with their own methodologies.expressions of those tendencies. jurists had to delineate when and what types of doubt triggered the maxims. In other words. Part of the professionalization involved building robust and schoolspecific theories of doubt in this earlier period. 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). These are the same jurists who 190    . 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. But they approached questions of ḥudūd imposition and avoidance without an overarching theory of doubt to guide their decisions. jurists elaborating the law in fiqh works attempted to move in the direction of systematization. when was imposition of the punishment mandatory. During the first three centuries of Islamic history.

see Chibli Mallat. 542-43. (1 Cranch) 137. except now they are commenting not on individual cases but on divine “legislation” (tashrīʿ. The Renewal of Islamic Law (Cambridge. 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. This they did through devising interpretive frameworks to say what the law is. 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.” See my “We the Jurists. 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. In other words. Madison. 79. In this chapter.1 Here.S. 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. 1993). For a similar observation made with respect to the juristic role in interpreting a modern “Islamic” constitution. 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. 191    . the previous chapter discussed the application of criminal laws. 177 (1803). New York: Cambridge University Press. how did they identify and define the text of the legislation governing the application of doubt jurisprudence before it reached the courtroom? That is. 5 U.” University of Pennsylvania Journal of Constitutional Law 10 (2008): 527-79.recorded and discussed the ḥadīth-cum-criminal cases that express certain anxieties related in the previous chapter. See Marbury v. we are concerned with the steps that jurists took toward interpretation. 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.

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

in turn. 32576 (English trans. for an earlier study. Chapter 5 (pp. (Leiden & New York: Brill. as noted in Chapter 1: their traditionism led them to reject or relate to the ḥudūd maxim differently from the other schools. most notably by introducing a ḥadīthbased textualism alongside existing rationalist and other interpretive tools.4 The aim here is not to detail the history and broad content of the school differences amongst legal schools. For specific examples of his text-based interpretive principles. its last significant exponent.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. 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. New York: Cambridge University Press. 27-158. 241/855) lived some decades after Shāfiʿī and it took even more time for his disciples to develop a Ḥanbalī theory of law. 13. “Was Al-Shāfiʿī the Master Architect of Islamic Jurisprudence?. 1997). Maḥmaṣānī. Ibn Ḥazm. 186-207. which also post-dated Shāfiʿī (its founder. Farhat Ziadeh. A fifth school is Ẓāhirism. 3-6 and accompanying footnotes (citing and rejecting Coulson’s formulation of “master architect” in Noel J. Ibn Ḥanbal (d. died in 456/1064.” International Journal of Middle East Studies 25. history. Practice Transformations (Cambridge. Christopher Melchert. see Wael Hallaq. Falsafat al-tashrīʿ. Early Islamic Legal History. Coulson. Accordingly.                                                                                                                                                                                                 the “master architect” of Islamic law. and doctrinal differences distinguishing the main Sunnī schools of thought. 4 (1993): 587-605). but that Shāfiʿī’s “revolutionary legal paradigm … played a central role” in the shift from tradition to law. 3 Ḥanbalism is considered a fourth law school and post-dated Shāfiʿī. nor fully rationalist.E. 121-127). 4 (pp. For a reading of Shāfiʿī’s writings as polemical texts against other contemporaneous legal and theological currents. 7 and Chapters 2 (pp. but as straddling a line between the two as an idea gaining currency in the field. see Shamsy. 4 Lowry is at pains to defend the “middle of the road” view of Shāfiʿī as neither fully traditionist. See Lowry. the latter’s detailed critiques of their approaches. chap. which actually preceded him—Ḥanafism and Mālikism. 2009). and Shāfiʿīs influence on the other schools. 313-16. 186-207). they deserve the independent treatment given them in Chapter 5. 1997). For a discussion of the Mālikī and Ḥanafī influences on Shāfiʿī. There is another reason for sidelining discussions of these two schools. From Tradition to Law. see generally Coulson. A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Cambridge: Cambridge University Press. The Formation of the Sunni Schools of Law: 9th-10th Centuries C. 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. From Tradition to Law. Sharīʿa: Theory. 275-318.3 He. 1961)). This school did not endure.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. History of Islamic Law. 4. through situating and analyzing the role of the ḥudūd maxim in their discussions of criminal law. 193    . Wael Hallaq. Ibid. see Lowry. The Philosophy of Jurisprudence in Islam (Leiden: Brill. Early Islamic Legal History. had a sizeable and enduring impact on those schools. 47-76). see Shamsy. Also see now idem. History of Islamic Law. 5 For standard works that detail the formation.

the texts underlying ḥudūd laws). which has been called dhawq al-sharīʿa (literally: “a taste for the law”) and even firāsa (discussed in Chapter 2 as “judicial acumen”). Instead. But he was not very concerned with elaborating instances of ḥudūd avoidance. they did not use pragmatic or practical reason as elaborated in later periods. see ʿAbd al-Majīd. He occasionally invoked the ḥudūd maxim in discussing limited circumstances of ḥudūd avoidance. 194  8   . particularly amongst Muʿtazilī and Shīʿī jurists.. Rather. appealed to a type of juridical “intuition” of a legalist mind. and provincial bases for identifying and following the Sunna—what the Prophet said and did and directed his Muslim followers to do. 11-12.Shāfiʿī recognized the tendencies of ḥudūd avoidance and imposition from earlier precedents.e. 7 I use this term rather than “reason-based” to capture the sense in which early Ḥanafīs approached law and legal interpretation. 1399/1979). he was concerned with bringing order to the growing chaos of divergent and often. From Tradition to Law. dependent as they were on him first laying out the proper circumstances of enforcement. see Shamsy. Ittijāhāt. 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. esp. 14-24. He saw those as weak. 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. 31-92. For multiple definitions of Sunna. subjective. 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). nor did they use analogical and other forms of reasoning prevalent in Sunnī schools of all stripes during the later period. see ʿAbd al-Majīd Maḥmūd ʿAbd al-Majīd. al-Ittijāhāt al-fiqhiyya ʿinda aṣḥāb al-ḥadīth fī ʾl-qarn al-thālith al-hijrī ([Cairo]: Maktabat al-Khānjī. in his view.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). Having studied under leading jurists in Iraq and the Ḥijāz.6 Criminal law was no exception. but focused on ḥudūd imposition when explaining ḥudūd “legislation” (i.

“Early Islamic Legal History.of these arguments yielded a clear-cut means of knowing the Sunna. which is widely considered the first work of jurisprudence (uṣūl al-fiqh). e.”). “Does Shāfiʿī Have a Theory of ‘Four Sources’ of Law?. Shamsy. 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. chapter 4.” 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    . “Introduction. 1987). Coulson.11 To understand how his approach translates into                                                                   9 For discussions. History. “Introduction. Lowry.” 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. See. both—in Shāfiʿī’s view—conflicted often enough with the reports of prophetic practice!9 A more objective indication of Sunna.10 But even with that premise. but he also defined the method by which legal reasoning was restricted within the framework of authoritative sources [i. of which other sources such as consensus (ijmāʿ) and the opinions of the Companions were derivations. Bernard Weiss (Leiden: Brill. Wael Hallaq. cf. contradictory opinions through a plethora of hypothetical scenarios and the Mālikī arguments produced more than one interpretation of practice. ed. inasmuch as the Ḥanafī arguments produced multiple. He articulated many of these methodological moves in his work. idem. was contained in the text of traditions that elucidated earlier precedents of the Prophet and his successors.” in Studies in Islamic Legal Theory. 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. Shāfiʿī needed to devise a way of dealing with conflicting precedents. This past was enshrined in and accessible through verifiable reports— primarily the Qurʾān and the Sunna. see Shamsy. 42-43 (“Not only did he reject the use of sources that [he deemed] not Islamic. such as custom and personal opinion. To that end. 29 (describing the fluidity of opinions generated by those who subscribed to legalist-minded interpretation (ahl al-raʾy). From Tradition to Law. but also … these sources in fact contradict the Mālikī position that claims to be based on them ….. “Was AlShafiʿi the Master Architect.e. he argued. 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). the Risāla. 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. he attempted to articulate rules to guide the interpretive process and to systematize the law.g. 10 See Majid Khadduri. authentic ḥadīths].” 40 (calling him the “founder of uṣūl al-fiqh (roots or sources of the law)”). 11 See Khadduri. From Tradition to Law.”) (citations omitted). such as—in criminal law—the competing tendencies toward ḥudūd imposition and avoidance. effect during most of the 9th century”).. Many disagree with this designation. 588 (arguing that Shāfiʿī’s designation as “founder of uṣūl al-fiqh was a later creation” as “his Risāla had very little. if any.” esp.”). 2002): 23-50. Joseph E.

Accordingly. Umm. to gain a full understanding of law. we can look to his work. 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. 2008). 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. Ḥudūd Definition. This may be referred to as his “starting point” quite literally. Rifʿat Fawzī ʿAbd al-Muṭṭalib (Manṣūra. With Shāfiʿī and Mālikī jurists. NB: I have used this edition where possible because it is the only critical edition of this work (first published in 2001). Commission. 7:319. there may however be remaining citations to an older edition. Umm. Qurʾān. For him. Shāfiʿī rejects definitions of theft that diverge from his conception. See ibid.”12 Yet such scriptural laws are incomplete without the traditions. male or female … as their due for their crime. ed. 5:38 (al-sāriqu waʾl-sāriqatu fa-ʾqṭaʿū aydiyahumā jazāʾan bi-mā kasabā nakālan min Allāh …. namely. or some measure of juristic insight not readily apparent to another jurist in another locale or with different sensibilities about the law. Shāfiʿī was the first to commit to a consistent method for deriving and justifying the law. as marked below. contending for instance. 13 Shāfiʿī. Imposition In his discussion of criminal law.). 7:319.13 Any discussion of ḥudūd laws must then begin with the textual rules requiring imposition—                                                                                                                                                                                                 the first work of this discipline. the text of the Qurʾān provides a starting point for criminal law. the final outcome of a given legal problem would depend on the existence of a local custom. a jurist must look to authentic traditions. an exemplary punishment imposed by God. which—compiled later in his life— contains and explains his most developed opinions of substantive law (fiqh). juristic preference.criminal law rulings.”). Umm. as in the verse commanding hand-amputation of the “the thief. Shāfiʿī argues.. 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. evaluating them for authenticity—reconciling the valid reports and rejecting the spurious ones. 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). 12 196    . [Egypt]: Dār al-Wafāʾ liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ. 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. because the Risāla is not a work of uṣūl al-fiqh at all. See Shāfiʿī. A. 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.

14 Because the thief had come to own the stolen item. i. and out of a principle of precaution (iḥtiyāṭ). they say. But for Shāfiʿī. see Qudūrī. and arises typically based on non-textual. 15 Shāfiʿī. (2) from a secure location (ḥirz).meaning both Qurʾān and Sunna (as embodied in authentic ḥadīths). (3) by someone who was not entitled to the property. 197    . For him. see ʿAbd al-Majīd. gifted the stolen item to the thief] before [coming to me with the charge]. 372-73 (citing the ḥadīth. he is implicitly rejecting additional ḥadīths stating that the minimum amount was 5 or 10 dirhams. including elements of timing and culpability in ḥudūd laws. For a citation of all four traditions and discussion of the dispute between Shāfiʿī and Abū Ḥanīfa.e. 557. 3 dirhams). 11:5987. carrying out the sentence would be tantamount to punishing the now-actual owner for the theft of his own property. 7:324.15 Further. 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. Under this rubric.. adopted the highest stated amount. these                                                                   14 For the Ḥanafī argument to this effect. 1. “Hand-cutting is due for (theft of goods worth) ¼ of a dīnār or more: al-qaṭʿ fī rubʿ dīnār fa-ṣāʿidan”). Here. their interpretation is wrong because it disregards the general rules governing the basic elements of theft. Defining Criminal Elements Shāfiʿīs treatment of Ṣafwān’s Case is a case in point. as we will see. Umm. avoidance is contemplated only after establishing criminal liability with respect to the substantive criminal law. some jurists mistakenly read the Prophet’s statement to Ṣafwān in that case. evidentiary grounds. further discussed below. Ittijāhāt. “if only you had done so [i. According to Shāfiʿī. Significantly. He understood the incident to exemplify a rule of ḥudūd imposition. 10 dirhams as the minimum actionable amount. Tajrīd..” to mean that there was no ḥadd liability and that perhaps the sentence was not carried out.e. which state alternatively that the minimum amount was ¼ dīnār or 3 dirhams by equating the two. Abū Ḥanīfa accepted the possibility that all ḥadīths on the matter were authentic reports. Shāfiʿī is apparently reconciling multiple ḥadīths.

bathroom..elements must be completed at the time of the offense. 7:377 (extending this example broadly. In that case. Shāfiʿī. 198    . he took it from a secure location (as Ṣafwān had attempted to secure it under him while sleeping). that Ibn al-Zubayr imposed the ḥadd for a single dirham (silver coin)). the ḥadd punishment was due. likewise. anyone who is in a public place (mawḍiʿ mubāḥ).19 Essentially. not after a judge has issued a guilty verdict and sentenced the offender.16 In some measure. ed. All of these elements were completed at the time of the crime. the thief was ḥadd eligible because he met the basic elements. He took Ṣafwān’s cloak at a time when he did not own it. Ṭabarī disagrees too with the view that the verse is general. whether he is in a desert.). initially. 19 18 Ibid. 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. Jāmiʿ al-bayān ʿan taʾwīl āy al-Qurʾān [hereinafter Tafsīr]. there is ḥadd liability on clear textual bases. 1997). Because these elements were met. whenever those elements are complete. Ṣalāḥ ʿAbd al-Fattāḥ al-Khālidī and Ibrāhīm Muḥammad al-ʿAlī (Damascus: Dār al-Qalam. 3:220-22. Ibid. The important point to note here is his emphasis that. which barred the possibility of ḥadd avoidance. 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)). 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. that becomes a secure location. 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. 7:326 (al-ḥadd innamā wajaba yawm kāna ʾl-fiʾl). holding that it specifically refers to theft of the value of at least ¼ of a dīnār (gold coin). Shāfiʿī added the timeliness element                                                                   16 Shāfiʿī. because this is the way he secures his own belongings. Umm. notwithstanding Ṣafwān’s attempt to change the facts of the case after the verdict. Umm. under him (bi-ʾḍṭijāʿih ʿalayh). and sleeps on his cloak (thawb). It is within this framework that he interprets Ṣafwān’s Case.18 and the cloak presumably was worth more than ¼ dīnār. and the ḥadd punishment is not to be avoided. authentic traditions. 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)). based on the more sound traditions. or otherwise. 17 For the positions see Ibn Jarīr al-Ṭabarī. Beirut: al-Dār alShāmiyya.

the (former) slave is not fully ḥadd eligible. For the Qurʾānic verse imposing a half-punishment in the context of zinā. 7:343-45. Shāfiʿī                                                                   20 Ibid. worth 80 dirhams. but (unlike some jurists) that gender makes no difference. 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. other exceptional categories that decrease or delay ḥudūd punishments include pregnant women. Shāfiʿī notes that adulthood or majority is a requisite element for ḥudūd 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. sometimes mitigating or barring criminal punishment. and interacts with the timeliness requirement to bar criminal liability.”). he or she will not necessarily receive the full ḥadd punishment. By a Qurʾānic rule.: ‘chaste through marriage’). commits defamation. slaves who commit crimes are liable for only half the ḥadd punishment. See ibid.21 Here. 7:374-75. etc. slaves who steal from their masters might not be liable for ḥadd punishment at all. For example.20 Shāfiʿī applies this to the hypothetical scenarios here to hold that the rule still applies.. 21 Aside from slavehood. or has sex outside of marriage. terminally ill defendants. 199    . see Qurʾān. the text requires that he receive only half of the ḥadd punishment for free persons. 4:25 (“As to slavewomen who become respectable married women (lit. because it is textual. 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 … . and the master frees him before judgment is rendered. if a slave commits a crime. in this case. 7:367. those who would die if punished (esp. Shāfiʿī noted that this added timeliness element can have an opposite effect. Relatedly.. 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. Here. In a famous case of a terminally ill man who was found guilty of having committed zinā. Shāfiʿī cites an early precedent wherein ʿUmar ruled that a slave could not be punished for stealing his mistress’s mirror. the text of the Qurʾān is controlling. Shāfiʿī. if they commit an indecency. for theft) because of extreme heat or cold. Umm. Like all other jurists.

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

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

Shāfiʿī was taking aim at Abū Ḥanīfa and the other Iraqi jurists.”30 In essence. For further discussion and a theory on how and why this came to be.creates ḥadd liability. one reported event happened after the Battle of Ḥunayn. 202    . Sunnī sources observe that ʿUmar arrived at this decision through consultation with ʿAlī. That is. which likely follows a common practice of inserting ʿAli in controversial decisions polemically to serve sectarian purposes. 28 29 For Abū Ḥanīfa’s response. Shāfiʿī’s treatment of it suggests that he saw this move as a legitimate basis for the law. al-Walīd to be flogged for drinking. he reasoned that “whoever drinks gets drunk. The change stuck.29 ʿUmar increased the number to eighty sometime after he assumed leadership because he noticed that drinking was becoming a more regular phenomenon. When they informed him. Umm. and whoever gets drunk talks nonsensically (hadhā). 30 See Shāfiʿī. For example. 7:447. he was unaware of the precise rules on wine drinking and therefore had to ask those who were at Ḥunayn about what transpired.” 5-39. see the next section. The early traditions report that the Prophet announced a sentence of forty lashes. he followed the precedent of imposing 40 lashes. 7:363-66.28 As for the punishment for intoxication. he legitimated Companion                                                                   27 See Shāfiʿī. Umm. When Abū Bakr assumed leadership over the community following the Prophet’s death. when the Prophet sentenced Khālid b. More broadly. 438-49. see Modarressi. Umm. 7:447.27 By insisting on the text to resolve the debate. Shāfiʿī readily acknowledged that no scriptural or ḥadīth text imposes a ḥadd punishment of eighty lashes. “Early Debates. whom he accused of arbitrarily allowing certain types of intoxicants to accommodate an Iraqi penchant for drinking. 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. though incidents of actual imposition were infrequent and not well known. the serious harm that he perceived to the public sphere—with apparently increased incidents of wine-drinking—led ʿUmar to double the punishment. and whoever speaks so makes defamatory remarks (iftarā) …. See Shāfiʿī.

Shāfiʿī’s concerns—as a way of alleviating moral anxieties—were with providing methodological clarity and consistency in the definition of law. Ittijāhāt. In some respects then.. see Lowry. “Introduction. but not for Ẓāhirīs. For recent studies. Thus.policies such as this one. Iraqi Ḥanafīs maintain that ḥadd penalties are due upon commission of a first and second theft (i. To return to the example of stealing. From Tradition to Law. rather than focusing on doubt. regardless of pragmatic or other considerations. 2.” 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. consider the way his treatment diverges from that of the Iraqi jurists concerning multiple thefts. See also Khadduri. 203    32 .”).32 We see here how this concern pervades his criminal law jurisprudence. though Shāfiʿī accepted the ḥudūd maxim in evidentiary matters (as we will see). 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. as has been well-argued in other contexts. Shamsy.e. he aims to eliminate or preempt it through identifying and appealing to authentic ḥadīth texts. where Shāfiʿī emphasized that the ḥadd sanction is to be imposed according to the dictates of authentic traditions. considering reports of them to be “text” as authoritative as prophetic or divine legislation. The debate arose in the context of recidivists. See ʿAbd al-Majīd.31 In sum. 359-61. amputation of                                                                   31 ʿAbd al-Majīd notes that this held true for the group of ahl al-ḥadīth (traditionists) generally and for Shāfiʿī. Early Islamic Legal History. his textualist stance led him to take a stand against ḥudūd avoidance on questions of substantive law. in the Risāla. who regarded only prophetic statements as authoritative. 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.

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

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

Criminal sanctions are harsh. despite the harsh consequences for recidivists.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.44 Further. 44 45 46 See ibid. See ibid. Ḥanafīs regularly attribute quite a few traditions to ʿAlī that are generally “unreliable.”43 In contrast to the report invoked above that shows ʿAlī avoiding the ḥadd penalty for third-time offenders. 7:330 (ghayr thābit. he says. Ibid. he observes. Umm. they adopt reports that ʿAlī ordered the foot to be amputated in the middle (rather than at the ankle. 206    . Shāfiʿī retorts mockingly against the Ḥanafī point that excessive severity would “ruin” the offender. mustankar). For example.” and indeed.were inconsistent with other norms and conclusions (which is why they are not acceptable). causing needless pain) and that he shaved off the fingertips of minors who stole (though there is no ḥadd liability for minors). because they are meant to deter people from committing crimes in the first place and to serve as spiritual expiation for the offenders. The governing principle of criminal law for Shāfiʿī was that text controls and it specifies that repeat                                                                   43 See Shāfiʿī. “despicable.

See above. Umm.48 * * * So far. and it is there that the ḥudūd maxim came in for Shāfiʿī. on zinā. this approach pervades all of the areas of criminal law that Shāfiʿī discussed as he laid out the rules for zinā.49 In fact. 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)). Shāfiʿī says.                                                                   47 Ibid. etc. 207    49 50 . Ṣafwān’s Case was just one example.50 Yet. For example. did the facts fit the textual definitions so neatly. a reliable report indicates that Prophetic practice abrogated the rule requiring the death penalty after the third offense. however. This worked for defining criminal elements added by early precedents of the Prophet and his Companions contained in ḥadīths.. Shāfiʿī added a timeliness element to his initial text-based tripartite definition. intoxication. 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. 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. note 31. 6:330-36 (observing that non-Muslims are subject to the Islamic ḥudūd laws rather than their own laws). 48 An exception concerns the ḥadd for drunkenness for which. 7:363-65 (noting a Prophetic saying imposing the rule and a subsequent practice wherein he did not apply the death penalty. and accompanying text. On its basis. Evidentiary matters often fell beyond the text. he did not always insist on ḥadd liability and ḥadd imposition. which—as noted— constituted foundational “texts” for Shāfiʿī.47 An orientation toward lenience therefore was for him not a valid reason for avoiding ḥudūd sanctions. 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). Shāfiʿī steadily adds certain across-the-board elements intended to more precisely articulate when the law requires ḥudūd imposition. 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. In the same way that he argued for theft. see Shāfiʿī. Umm. Rarely.offenses require repeat punishments. See Shāfiʿī. 7:330-31.

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

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

then the ḥadd sanction is due. and having tried to follow the proper procedures to remarry. Shāfiʿī generally held that there was no ḥadd                                                                   59 Shāfiʿī.62 In this way. and passim. wa-kadhālik in qālat hiya dhālika … [aw] in qālat qad ʿalimtu annī dhāt zawj wa-lā yaḥull lī ʾlnikāḥ uqīma ʿalayhā ʾl-ḥadd).59 In such instances. 210    62 . Umm. Ibid. 61 Shāfiʿī. cf. For allegedly defamatory statements that are only implicitly offensive (taʿrīḍ). at least for defamation (qadhf). both incur ḥadd liability for going forward with the marriage despite knowing of its illegality. Shāfiʿī says. 60 Ibid. which for him turned not just on the understood effect but also the intention behind offensive or lineage-denying statements. (fa-in iddaʿā ʾl-jahāla … uḥlif wa-duriʾa ʿanh al-ḥadd). Shāfiʿī spells out a knowledge requirement alongside the voluntariness requirement articulated above. see Mottahedeh. Umm. On the symbolic importance of oaths that helps explains their importance in procedural matters. 7:392-93. Shāfiʿī added an element of intentionality. if the couple marries but is arrested on zinā charges. above note 52. 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. 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. Loyalty and Leadership.61 For example. 46.eligible to remarry—having received news that her pervious husband had died.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). 61. Finally. or if the woman says that she knew that she was still technically married to someone else. perhaps away at battle. if the man says that he knew the woman was still in her divorce waiting period but married her anyway.

as well as apostasy and highway robbery (qaṭʿ al-ṭarīq) (which he also considers ḥudūd crimes) and qiṣāṣ (murder and personal injury). Umm. and that he had a wholly lawful purpose. 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. defamation (the traditional ḥudūd crimes). he maintains that ḥadd liability can be removed even after a judge renders a guilty verdict and begins to impose the sentence. Proving the Elements Finally. knowledge. he seems to have had the ḥudūd maxim in mind. including mens rea. His language recalls the phrasing of the maxim and he is concerned overall with instances of ḥadd avoidance for evidentiary deficiencies. 9:277.63 When in doubt. 6:131 (khurūj ḥukm al-ḥākim qabla maḍāʾ al-ḥadd ka-maḍāʾ al-ḥadd). 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. and intent. Shāfiʿī implicitly folds these mens rea requirements into his idea of criminal liability for the other types of crimes—theft. and then swears that he only meant to refer to the other person geographical place of origin. 7:327.. he did not mention shubha specifically.65 In Shāfiʿī’s treatment here.” although his parents were not. 66 65 Ibid. Shāfiʿī has added a thick concept of mens rea to the requirements for criminal liability. 64 Ibid. yet. wine-drinking.”66 This                                                                   63 Muzanī.64 Taken together. despite claims of some jurists that the end of a criminal trial is final. 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. (giving the example of someone who calls an Arab a “Nabatean. Shāfiʿī. by insisting on elements of voluntariness. 211    . were completed at the time of the offense. In fact. and that “announcing the sentence is as good as carrying it out. not to deny paternity of his Arab father).liability unless the person making the statement intended to defame. 2. Mukhtaṣar.

see Whitman. Cf. drawing on Māʿiz’s case and analogizing to the four witness requirement. and a judge. unlike other non-criminal law contexts where women can testify (two in place of one man). Umm. there are four parties to criminal cases: the accuser. Even then. as the well-known ḥadīth puts it.68 In contrast to commercial law contexts. “Gender and Legal Authority: An Examination of Early Juristic Opposition to Women's Ḥadīth Transmission. 391 (particularly for theft or highway robbery). manner. the accuser brings a claim against the accused before a judge. As a general matter. One Man: Knowledge. 69 70 For an insightful article addressing the development and socio-political background of evidentiary disparities between men and women’s testimony. when only a single (male) witness is available and the stolen item is present. Reasonable Doubt. Umm. Ibid. The same was generally true in the medieval period in other polities. and place of the act.69 Likewise. Umm. the accused. 7:391 (specifying that the witnesses must see the act. 7:388 (lā yajūz fī ʾl-ḥudūd shahādat al-nisāʾ). witnesses. If the crime is established through these means. 387-88. In cases of zinā.67 To initiate a criminal proceeding. the accused is to pay back the value of the good on the day it was stolen. both offering a description that is detailed and identical. in the presence of the victim. 7:387.71                                                                   67 See Peters. Shāfiʿī. Shāfiʿī.” Islamic Law and Society 16. Establishing ḥadd liability for most crimes requires a confession or two reliable witnesses to the crime.. Power and Gender in Medieval Sunni Legal Thought. 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. now Asma Sayeed. 2 (2009): 115-50. Shāfiʿī requires only a single confession.” International Journal of Middle East Studies 29 (1997): 185. Crime and Punishment. Unlike most other jurists who require multiple confessions. for the common law and continental context. 96. see Mohammad Fadel. “Two Women. The other major exception for allowing women’s testimony in ḥudūd 212    71 .70 women’s testimony is typically inadmissible in ḥudūd proceedings.discussion takes us directly to criminal sessions where judges are applying criminal law rules that contain heightened evidentiary procedures. the testimony is considered defective. 68 Shāfiʿī. 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). liability for the punishments of flogging and stoning alike are removed with such defective testimony. a single witness plus an oath (yamīn) is insufficient to establish the crime. 389. “like an eyeliner stick going into a kohl container: annahum raʾaw dhālika minh yudkhal fī dhālika minhā dukhūl al-mirwad fī ʾl-mikḥala”). but no amputation is required. Exceptions are in cases of theft. particularly in the context of zinā—where the penalty can be death.

the law was clear. He does not mean doubt about what the criminal elements are. then neither ḥadd punishment nor discretionary punishment (taʿzīr) is due. Shāfiʿī explains. 7:446. ibid. Shāfiʿī has mentioned shubha. If there is some doubt about whether the substance was intoxicating (fa-ammā idhā ghāba maʿnāh). any deficiency in meeting these evidentiary burdens creates a measure of doubt as to whether the criminal elements have been established. such as issues of gender. His act. saying. 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. 6:388 (specifying that the thief is to pay the value of the stolen item but that he is not subject to amputation). Shāfiʿī holds that judges should not impose the ḥadd sanction on anyone who retracts a confession to “stealing. Ashbāh. cf. 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. or drinking wine. he notes that punishment may also be due if a person admits to drinking wine. see Chapter 4. For further discussion. 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). etc. 72 Shāfiʿī. for example. Umm. those have been clarified by tradition.72 As well.For Shāfiʿī. deeming the same disputed marriages as legitimate bases for ḥadd-averting shubha. 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. Suyūṭī. Ibid...” 185ff. See.. For instance. 237. and he took                                                                                                                                                                                                 matters involves issues considered unique to women’s areas of competence. committing zinā. When it comes to drinking. Thus. although Shāfiʿī maintains that the law forbids drinking any intoxicant. The context gives us an idea of what he means by the term. 7:327. is the introduction of doubt (shubha) of the type that is ḥadd-averting. Shāfiʿī says. See ibid. Ibid. finally in the evidentiary context. he does not use the term to refer to circumstances of textual or interpretive ambiguity. as noted succinctly in Shāfiʿī works of legal maxims.. 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).74 Here. 74 75 73 Ibid. One Man.75 for him. For a discussion of the categories and their social significance see Fadel.” or admits to drinking from a container from which he knew others had drunk and had become intoxicated.g.). “Two Women..”73 The reason. childbirth. e. 7:327 (shubhatih bih). Later Shāfiʿīs would reverse course completely. as later jurists—even within his own school—would do. Specifically. “I drank an intoxicant. 213    .

From another perspective. Shāfiʿī’s treatment demonstrated how Muslim jurists refer to such instances as ḥudūd avoidance or ḥadd-averting shubha. then neither a ḥadd sanction nor a discretionary punishment (taʿzīr) is due. above. where Shāfiʿī                                                                   76 Ibid. In other words. when they were considering or directing judges to consider whether ḥadd liability is due. 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. “if there is uncertainty about whether the law was violated. stealing from a secure location. drinking intoxicants. note 72). (here: whether the substance met the definition of the criminal element requiring intoxication for drunkenness (fa-ammā idhā ghāba maʿnāh)).”76 A given act. Shāfiʿī saw shubha as doubt about whether the known elements of the crime. that is. he concluded. have been completed. 214    . Stealing from a location that has not been secured. marrying a close relative unwittingly. and other criminal acts justified by appeal to foundational “texts” are prohibited and constitute ḥadd violations. 77 Ibid. and on that score. and other situations where the substantive and mens rea elements are not met do not constitute ḥadd violations. Thus. he saw no room for interpretation. 7:446 (innamā yuʿāqab al-nās ʿalā ʾl-yaqīn) (quoted above. mistake.pains to provide the bases for his opinions.” Punishment is only due for violations of ḥadd crimes on the basis of absolutely certain evidence.77 As noted. as he has defined them on the basis of authentic texts. or debate—used by other schools as a backdoor to ḥudūd avoidance. For Shāfiʿī. is “either a ḥadd crime or [it is a] permissible [act]. These latter instances are to be distinguished from the other cases. knowingly marrying a close relative.. Rather.

Shāfiʿī contemplated the propriety of ḥudūd avoidance. Shāfiʿī arguably laid foundations for expanding the definition and scope of both. 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). issues of ḥudūd avoidance typically arose in evidentiary matters when it came to proving the crime or assigning culpability. Early Shāfiʿī Shubha The thrust of Shāfiʿī’s jurisprudence.specified that an offender had incurred ḥadd liability at the time of the crime. 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. For example. to void ḥadd liability in such cases is a narrow reading of a ḥadīth-text outlining ʿUmar’s ruling that 215    . the only ḥadd-averting shubha then was some deficiency in the evidence required to establish the textuallydefined crimes. not doubt. in those instances. ḥadd liability would not always be removed. including his criminal jurisprudence. such as instances of trying to change the facts after the verdict as in Ṣafwān’s Case. which is the province of the ḥudūd maxim and ḥudūd avoidance. he held that it enters at the stage of proof. C. was about certainty. Despite his apparently procedural and narrow stance toward shubha and ḥudūd avoidance. For him. For Shāfiʿī. 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. 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. For him.

. 216    . His follower Muzanī (d. 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. so far as we can tell. was that “the goods are not taken from a secure location. One relevant comment concerns questions of ḥadd liability in instances of spousal theft from one another. 264/878) offers minimal commentary in an abridgement of Shāfiʿī’s major legal treatise. Thābit said: laysa fī khalasa qaṭʿ). 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. To be sure. citing a case wherein Zayd b.” but by fraudulent means (khiyāna). which Shāfiʿī had listed as a case of fraud for which ḥadd liability typically should be removed. Muzanī points out that Shāfiʿī had earlier                                                                   78 Ibid.ḥadd liability applies only to servants who take from their masters. or people who borrow property held in security (wadīʿa) but then deny that it belonged to the original owner. In short.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. children who take their parents’ property and vice-versa. anyone who takes property from someone else living in the same house. He acknowledged a broader reading as well. commenting that the rule should probably be extended “out of precaution” (ʿalā ʾl-iḥtiyāṭ) to other cases: spouses who take each other’s property. 7:782 (noting that the same applies to khalasa. the Umm. Shāfiʿī maintained. The thread common to all of these situations. * * * A similar approach to ḥudūd imposition and avoidance endured amongst Shāfiʿī’s followers for some time.

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

he saw Abū Ḥanīfa as inventing principles of law that went far beyond the text. 20-21.III. 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. Ḥabīb) simply were more likely to touch upon issues of ḥudūd avoidance connected to high-status individuals                                                                   82 Khadduri. Early Spread of Ḥanafism (Cambridge.g.” 42-43. 83 84 See Chapter 2. recognized the ḥudūd maxim widely as a well-known criminal law principle. 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. and Ḥanafīs in particular. It may be that some state-connected Ḥanafīs (e.. Der Islam 59. 27-34. Early Ḥanafīs As intimated above. that is.82 * * * We saw above that the Iraqi jurists. For the background political context in which Ḥanafism formed and developed in Iraq.g. 218    . if indeed they were based on any textual premise at all.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. (1971): 32-39. and elsewhere. the Mālikī jurist ʿAbd al-Malik b. 2004). “Introduction.. Wilferd Madelung. see Tsafrir. “The Early Murjiʾa in Khurāsān and Transoxania and the Spread of Ḥanafism. Abū Yūsuf) and others (e. Among other complaints. 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.84 The political contexts in which they invoked the maxim were special too. Khurāsān. 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. Section II.

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

Two examples will serve to demonstrate how. it is understood that Abū Ḥanīfa initially held the first opinion. a. Shaybānī.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. but subsequently adopted the latter. having read a broad voluntariness requirement into the law. as a matter of fact. Ḥanafīs approached evidentiary matters with some manner of objective inquiry that serves to restrict instances of ḥudūd avoidance on evidentiary matters. 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. on the margins of Shaybānī. See Qudūrī. recall that Shāfiʿī held that there was never ḥadd liability against the victim of rape or the one coerced to rape another person. Abū Ḥanīfa read in a voluntariness requirement as well. 87 That                                                                   86 See Abū ʾl-Ḥasanāt al-Laknawī (d. al-Nāfiʿ al-kabīr (sharḥ al-Jāmiʿ al-ṣaghīr). that the ḥadd is due whether the sulṭān or anyone else coerces acts of zinā). Ḥanafī commentators argued that. 11:5896-97. coerced zinā is inconceivable without the arousal of the man supposedly being coerced. 230. they presumed. contrary to Shāfiʿī. Tajrīd. 11:596 (al-khawf yunāfī ʾl-shahwa waʾl-intishār fa-lammā wujida minh dalla ʿalā ʾkhtiyārih). For if someone was truly fearful. Qudūrī. 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. For further discussion 220    87 . al-Jāmiʿ al-ṣaghīr (Karachi: Idārat al-Qurʾān waʾl-ʿUlūm al-Islāmiyya 1407/1987). 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. and they took arousal to be an indication of voluntariness.lenience is taken to refer to instances where a school’s doctrine holds that there is no ḥadd liability. if the sulṭān was the one violating those laws. Tajrīd. as the foremost authority ultimately responsible for implementing ḥudūd laws. 1304/1887). the fear would overcome their will or ability to have sex. That is. Voluntariness: Sexual Coercion In cases of rape.

Tajrīd. 11:5896. the act in question does become like committing zinā in nonMuslim lands (dār al-ḥarb). he just disagreed as to whether coercion to rape could ever be truly involuntary.88 That is. when there was a single sulṭān. he says. that level of fear creates the possibility that the act was fully involuntary. Interestingly. where jurists were agreed that there was no ḥadd liability.situation would be no different from committing zinā in non-Muslim territory (dār alḥarb).e. 2 (1991): 121-59. (lā nusallim wujūd al-shubha). This was a dispute about                                                                                                                                                                                                 of this problem and coercion in Islamic law more generally. arousal) meant that the successful perpetrator of rape could not use coercion as an excuse. In that sense. Qudūrī comes up with a creative compromise that softens the hard line of this broad rule of ḥudūd imposition.89 The ḥadd sanction is not to be avoided. 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. because “we do not acknowledge that there is any shubha. See ibid. and referring to the potential category of shubha as shubhat al-Imām). where ḥadd liability remains even though the ḥadd sanctions are not applied. Yet. Nāfiʿ. 147-48 (on rape). Qudūrī. 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. 221    .” Arab Law Quarterly 6. 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. Very quickly. on the margins of Shaybānī. 11:5897 (citing the ḥudūd maxim in its standard form: idraʾū ʾl-ḥudūd biʾl-shubahāt. al-Jāmiʿ al-ṣaghīr. which meant that there was no clear sulṭān in charge of ḥudūd crimes and the rule of ḥadd avoidance should apply uniformly. Ḥadd liability is not removed. He also notes that the rule changed from Abū Ḥanīfa’s time. (al-mukhtār lā yuʾaththir fīh al-ikrāh). esp. the fledgling empire saw multiple regional rulers (mutaghallib).. 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 maintained..”90 the objective indications of voluntariness (i. See ibid. “The Common and Islamic Law of Duress. 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. and the ḥadd imposition is thus mandatory. 230.91 Abū Ḥanīfa agreed with Shāfiʿī then that voluntariness was a criminal element of rape and that coercion removed ḥadd liability generally. Laknawī. see Khaled Abou El Fadl.

Not long after Abū Ḥanīfa’s death. Abū Ḥanīfa and his disciples doubted that any man could be coerced to have sex inasmuch as they deemed arousal tantamount to voluntariness. 222    94 . 148 note 112. the person being coerced should choose to sacrifice themselves rather than the rape victim..facts. times had quickly changed to make the initial rule with the sulṭān as exception obsolete. undergirded his position in favor of ḥudūd imposition even in seeming cases of coercion involving sexual violence. and pressure that is not as compelling or constraining—“incomplete compulsion” where liability is not removed). 19.92 This. For them. See Mottahedeh. rather than textual definitions devoid of physiological or political contexts. and subsequent Ḥanafīs came to change this rule to cover even cases where the sulṭān did the coercing. As one scholar has remarked. Muslim jurists held that rape is always a criminal act.94 From as early as the First Civil War (35-40/656-661). but the frequency with which those in effective control over the community sought to maintain the fiction of a single caliph. see Abou El Fadl.. which vitiates voluntariness and where liability is removed. beginning with ʿUthmān’s (d. “The Common and Islamic Law of Duress. ongoing rivalries and rebellions called into question rules based on an idea of a political order with a single sulṭān. 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.” 127-29 (describing the Ḥanafī distinction between compelling duress. 35/656) assassination after which various tribal and political factions struggled over who had the legitimate right to become reigning caliph. 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. One suspects that another rationale is at play.93 * * * Abū Yūsuf. Despite the universal Muslim ideal that recognized a single ruler at any given time. Based on their understanding of human biology. the ideal was not reality. Shaybānī. Coerced sex would be a matter of the second category. See ibid. 93 For further discussion. 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). Loyalty and Leadership. who symbolized the unity of all Muslims.

The changed ruling taking the contrary view came to accommodate shifts in politics rather than the factual basis for the law itself. For further discussion. arousal was the type of objective indicant of voluntary intent that made avoiding the ḥadd sanction difficult. Yet. Abū Ḥanīfa differed in his definition of the knowledge requisite to trigger ḥadd liability. Abū Ḥanīfa read a knowledge requirement into the law. note 88. more early Ḥanafīs would have maintained a narrow rule of voluntariness. Ḥanafīs read a voluntariness requirement into the law. 96 See Qudūrī. Tajrīd. As expected. Nāfiʿ. heading a centralized state that appointed governors. 223    . but initially through a narrow lens that hinged it on types of political power and authority. ʿAbbāsid caliphs like Hārūn al-Rashīd were far more powerful than the earliest caliphs.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. 11:989 (attributing the “new” opinion to Abū Ḥanīfa as well). based on objective indications that worked to restrict the scope of ḥudūd avoidance in this area. 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. see above. Abū Ḥanīfa generally held that there was no criminal liability if a perpetrator of a criminally wrong act                                                                   95 Laknawī. 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).ruling had contemplated. b. Abū Yūsuf and Shaybānī. 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. as had Shāfiʿī. Arguably. Knowledge: Sex with a Prohibited Partner Alongside a narrow voluntariness requirement. For them. “usurpers” claimed the type of coercive authority that a single sulṭān had enjoyed during Abū Ḥanīfa’s time).96 In sum. judges. and further observing that even during the time of Abū Ḥanīfa’s two principal disciples. and other officials.

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

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

182/798). ʿAbd al-Majīd. Here. This approach to defamation can have mixed results— sometimes tending toward ḥudūd avoidance. in which the Prophet is said to have ordered a ḥadd sanction even after the defendant had repented or expressed remorse. Cf. For other instances of mixed rulings of ḥudūd imposition and avoidance for qadhf. 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. 11:5955-56 (al-taʿrīḍ biʾl-qadhf)). Kitāb al-Āthār. Qudūrī. they purport to reject statements posing as ḥadīths when those statements contradict known and settled texts from which they extract normative rational principles. For a discussion of the Qurʾānic bases. [1981]). See Abū Yūsuf (d. cf. Finality On another score.101 Ḥadd liability therefore should not attach. Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā. Tajrīd. cf. For further discussion. as above. Ḥanafīs held that it generally does not. noting that ḥadd was imposed and Māʿiz had repented. see. This is one area that challenges the notion that Ḥanafīs ignore text in favor of rational principles (aṣl. while the Shāfiʿī rule is the opposite of what one would expect on the basis of the texts. uṣūl). a person is born of two parents.103 Additional reasons related to what                                                                   101 Abū Yūsuf. Tajrīd. but other times tending toward ḥudūd imposition. As a jurisprudential matter. While Shāfiʿī held that repentance generally does remove ḥadd liability. 235-38. 226    103 102 . From Tradition to Law. as noted by Shamsy. Exceptions for them included repentance after apostasy and highway robbery. Technically speaking. 163 (noting that rival ʿIrāqī judge and jurist Ibn Abī Laylā would impose the ḥadd here). this is a way of mediating between ḥadīth of disputed reliability and in some ways of avoiding the issue of authenticity. for which Qurʾānic texts specify as much. al-Jāmiʿ al-ṣaghīr. though without commentary on the relationship between the two facts). A mere statement of possible lineage denial then does not in fact have the effect of denying the lineage. 11:5949-50 (also citing the case of the woman from the Ghāmidī tribe). 2.102 One basis for the Ḥanafī doctrine was reliance on Māʿiz’s Case along with other reported instances of stoning. Qudūrī.the tribe in question (and even though Shāfiʿī would disagree if the person intended to deny the defamed person’s lineage). their rational principle is qualified by textual bases. 460-62 (describing Abū Ḥanīfa’s position as to the authoritativeness of ḥadīth). Abū ʾl-Wafāʾ (Hyderabad: Lajnat Iḥyāʾ al-Maʿārif alNuʿmāniyya. in Abū Ḥanīfa’s view. see below. ed. Ittijāhāt. not the tribe. see Shaybānī. Shamsy. 19-24. 157 (reporting and commenting on the Case of Māʿiz.

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

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

Wakīʿ. e. 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. respectively.g.113 Like Shāfiʿī. Ḥanafīs argued that a beer-like drink called nabīdh was widespread during the time of the Prophet in Medina. Saḥnūn. Aḥkām al-Qurʾān. Mudawwana.110 When the Prophet first prohibited wine. Prominent Companions like ʿUmar and Abū Dharr.v. it is significant for our purposes because it had consequences for criminal law and its doubt jurisprudence. 1:385. The well-known example is the prominent Kufan jurist Ibn Shubruma (d. The general tenor of the sources suggests that it did not. the Companions differed as to whether the prohibition encompassed potent nabīdh as well. Akhbār al-quḍāt. and most jurists in Iraq reportedly continued to drink it. many Successors. 144/761).. Ibid.112 but most ʿIrāqī jurists permitted it.111 By the end of the second century. Ibn Shubruma). 557-82. 14-20. in contrast to wine. that intoxicants other than wine were prohibited by Islamic criminal law. 567 (s. esp.. 229    . which was in short supply. along with Shāfiʿī. 512-27. according to a Ḥanafī reading of history. Only a minority of ʿIrāqī jurists argued. leading Medinese jurists were against it. 110 111 112 113 Jaṣṣāṣ. he quoted this and several other traditions that he deemed authentic textual                                                                   109 See ibid. See.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.themselves? Shāfiʿī took the latter view while the Ḥanafīs took the former. 7:2459 (reporting Mālik’s opinion defining intoxicants as khamr). of a linguistic dialectic or of undetermined language).

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

drinking was a widespread practice and thus a matter of general community concern (ʿumūm al-balwā). 122 For a more detailed discussion. 576. 595-96. 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). see also ibid. Further. 120 121 See Wakīʿ. 460-62 (on Abū Ḥanīfa’s stance toward ḥadīth). based on what he deemed to be a host of authentic traditions? Ḥanafī jurists disagreed fundamentally with Shāfiʿī’s approach to the traditions. if it were prohibited.122 According to Ḥanafīs. and that he even composed a poem in its praise. 578. Their divergent opinion amounted to an attack on Shāfiʿī-style textualism. the traditions that Shāfiʿī and Ibn Shubruma trotted out actually indicate that nabīdh was not prohibited in the law. as they accused Shāfiʿī of trying to do. Akhbār al-quḍāt. not his reliance on them. 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. 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. 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 ʿAbd al-Majīd. Rather. Akhbār al-quḍāt. if there were some blanket prohibition against nabīdh. 590 (reporting that. 372 (ṭilāʾ boiled to half of its essence). Ittijāhāt. 600. the text would have prohibited it through a clear statement.On what basis did these jurists argue that drinking nabīdh did not incur ḥadd liability when Shāfiʿī was so sure of the contrary. 231    . See ibid. 61-67 (on basic differences between traditionists and ʿIrāqī jurists who adopted raʾy as a type of pragmatic reasoning). First. see Wakīʿ. Wakīʿ.. isolated ḥadīths that later ḥadīth-minded jurists could use strategically as they sought to amplify the import of isolated ḥadīths. Sharīk ruled that there was no bar to drinking it (lā baʾs bih)).. in response to a group of Medinese who prohibited nabīdh. Akhbār al-quḍāt. it would not have been on the basis a few single. 594. 523. in light of its regularity. 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).

Ḥanafīs maintained.301. 32/653).126 Moreover. 8:317. For the ḥadīth.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). who is said to have brought the law to Kūfa and served as its first judge. 3:156 (ḥadīth cited in Jaṣṣāṣ. would have been made widely known such that knowledge of would have been reflected in community practice (tawātur). Akhbār al-quḍāt. Muḥammad Zuhrī al-Najjār. 126 127 Jaṣṣāṣ.jurisprudential principle accepted by all schools. Aḥkām. even in a past generation. Bayhaqī. Aḥkām. 1994). which is a kind of fermented beverage made from the dates of two different types of trees. Sunan. 124 125 Ibid. See Wakīʿ. If a prohibition on it had ever been a matter of consensus. Ḥanafīs argued that the illustrious Companion-jurists Ibn Masʿūd (d. 594. no. Ṭaḥāwī. 17. it would have manifested at least amongst the Prophet’s Companions and their times. more reliable ones indicating that there was no universal acceptance of the proposition that “any intoxicant is wine (khamr). Aḥkām. 4:416. then khamr was to be taken in a figurative sense so as not to contradict the other certainly authentic traditions.124 For example. Mustadrak. ed. Sharḥ maʿānī al-āthār. Muḥammad Sayyid Jād al-Ḥaqq. if central to the law. If ḥadīths stating as much were authentic.123 Second. 387).” and therefore forbidden. the prohibition. 8129. Shāfiʿī’s ḥadīths were contradicted by other. 12:6080. see al-Ḥākim al-Naysābūrī. and Yūsuf ʿAbd al-Raḥmān al-Marʿashlī (Beirut: ʿĀlam al-Kutub. 1:387. and that—more broadly— the word khamr did not literally encompass every intoxicating drink.127                                                                   123 Jaṣṣāṣ. permitted nabīdh. 232    . Cf. Tajrīd. no. they held. there is the ḥadīth relating that a drunken man was brought to the Prophet to be punished. 1:386. 1:386. but the man said that he had been drinking a “mixed” drink (khalīṭayn). Qudūrī.

233    . by contrast. to support the point that there was no prohibition of any beverage other than wine (khamr). 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. both Shāfiʿīs and Ḥanafīs relied on texts. for Ḥanafīs. there was enough discrepancy in the sources touching upon the legal-theological consequences of drinking non-wine intoxicants. 129 Ibid. Accordingly.Finally. 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. Yet those who deemed nabīdh and other non-wine intoxicants to be lawful were simply called wrongdoers (fāsiq. even by Shāfiʿīs. the Ḥanafīs concluded. This included anyone who considered wine (khamr) to be permissible in light of the clear statement against it in the Qurʾān. which logically implies that not even they considered nabīdh-permitters to be unbelievers given the possibility of a different interpretation. are called khamr in a figurative sense (tashbīh) when they intoxicate. and the application of khamr to any other drink is figurative (majāzan). All of this should serve to prove the point that the prohibition on wine (khamr) is specific to intoxicating drinks made of grapes. Aḥkām. pl. Shāfiʿīs. pl. kuffār). fussāq).129 In the end. even amongst the Shāfiʿī jurists who otherwise tried to equate the drinks. then. 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. looked to other texts to define                                                                   128 Jaṣṣāṣ. jurists deemed those who declared lawful what God had unambiguously prohibited to be unbelievers (kāfir. 1:387.128 Drinks that are not actually khamr. not because they have the capacity to intoxicate.

the transfer removes ḥadd liability. 11:5985. 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. see ibid. See ibid. Qudūrī. contingent on all requisite elements for full criminality being satisfied. so does the presumption. 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. For a full discussion. for example.. Abū Ḥanīfa’s two disciples disagreed on the issue of acts of male sodomy. Tajrīd. Abū Ḥanīfa took a similarly pragmatistrationalist view of the texts with an eye to actual consequences or legal effects of certain acts. neither warranted the ḥadd sanctions. which he understood to be sex between a man and a woman. and excluded the figurative and conventional meanings that went beyond it as picked up and advanced by the Ḥanafīs.the text. Punishment. for bestiality. 234  132 133   . such as male sodomy and bestiality.133 To clarify with respect to another crime.132 Moreover.131 One explanation is that the gift plus the acceptance of it satisfies the legal requisites for transfer of ownership. See Shaybānī. On apostasy. 11:5910-16.130 b. 200ff. See ibid. Justice. esp. the ruling that ḥadd liability is due is merely a presumption (aṣl). This is but an example of a methodological rift between Ḥanafī and Shāfiʿī approaches to law and legal interpretation. siding with the Shāfiʿī position that the ḥadd sanction was due. 131 See Qudūrī. because they did not fit the conventional meaning of zinā. For Abū Ḥanīfa. 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. Āthār. 11:5917-18. 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). Timeliness and Legal Effects As for other criminal elements.. Tajrīd. see. as a later Ḥanafī jurist outlined. but that Abū Yūsuf takes the opposite view). When one of those core elements changes. 11:5985 (noting that Shaybānī adopts Abū Ḥanīfa’s position. see Lange. 5912 (for the linguistic argument).

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

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

2. holding 237    . For him such marriage contracts were defective and thus voidable (fāsid). Ordinarily. they created at least the semblance of a contract (shubhat al-ʿaqd). Abū Ḥanīfa extended this norm to family law. including issues of ḥudūd liability. In one of his rather unique jurisprudential positions. 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. even though he otherwise viewed incestuous relations to be so odious. 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. he held that no ḥadd liability for zinā would normally result from a marriage between two closely related relatives. Both he and Shāfiʿī started with the text but differed on how to approach it. That difference—as we saw—affected how each school regarded the scope of legal maxims. 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. the laws of contracts often trumped the laws of criminal liability. Abū Ḥanīfa appealed to other values that affected this equation as well. A principle value was the primacy of contracts. but satisfied the form of the contract nonetheless. In other words. Primacy of Contracts In Abū Ḥanīfa’s view. and this was enough to defeat accusations of zinā defined as sex outside of any marriage contract. and avoidance.definitional elements of a crime—in this case. imposition. In addition. ownership. For example.

There is some question whether this permission falls under slave law or contract law (specifically. 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. 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). Ashbāh. Lisān alʿArab (Beirut: Dār Ṣādir. or family law) within the classical sources themselves. in fact. 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.D. Motzki has argued—following Ṭabarī—that at least one Qurʾānic verse affirms this latter view. 2002) (concluding that marriage and slavery alike in Islamic law were considered forms of male ownership over women). because there was no full ownership.143 By deeming knowledge of the defect irrelevant to ḥadd liability.e. 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. i. those called milk al-yamīn are validly eligible for marriage (or sexual relations) just as are free. In other words. and has been used as such in legal terminology for marriage and other contexts. both require a further consensual agreement—bringing the relationship under the law of 238    144 . just as does a marriage contract. 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.. 1997). In verse 4:24. Further. the “property” in such cases still belonged to the debtor and devolved to the creditor only in case of default.” see Ibn Manẓūr.that the semblance of a marriage contract should provide protection as well.144 What of                                                                   143 Ibn Nujaym. He applied a similar logic to situations of merchants having sexual relations with slavewomen held as security. it forbids slavemasters from forcing slavewomen into having sexual relations. Sex. Put together. m-l-k). rad. A common reading is the former. dissertation. a separate rule permitting master-slave sexual relations did not apply to slavewomen held on security. and Power: The Contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period (unpublished Ph. linguistically refers to the legitimate right the right of access or “entitlement. In this example. even if they knew that they were not valid marriage partners in the first place. Money. Milk is often translated as ownership but. 6:92 (s. As with monetary guarantees. it would exculpate a couple from accusations of zinā. and in verse 24:33. Duke University. 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 master-slave relationship. the law of marriage contract. understood to refer to those with whom there is a contract or relationship of milk. See Kecia Ali. Accordingly. the Qurʾān permits sexual relations (or marriage) with those considered milk al-yamīn. believing women.

Sajjād Ḥusayn (Karachi: Idārat al-Qurʾān waʾl-ʿUlūm al-Islāmiyya. including verses 4:3. Cf. eds. Specifically enumerated are marriages without witnesses (according to the Mālikī rule). 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. 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 …). particularly as applicable to slavewomen). which conferred on the creditor at least partial ownership of the slavewoman. Tafsīr. al-Fatāwā al-Tātārkhāniyya. marriages that non-Ḥanafī schools of law validate give rise to instances of ḥaddaverting shubha. the loan agreement created the semblance of a contract. 4:23. 5:108-116 (discussing the differences in the rules fī kitāb al-rahn and fī kitāb al-ḥudūd). and Devin Stewart. Abū Ḥanīfa— like other jurists—held that such relations incurred ḥadd liability because there had been no default. 145 This rule of Abū Ḥanīfa is explained in Ibn al-ʿAlāʾ al-Anṣārī (d. see Baber Johansen. 1990-).cases where the creditor thought otherwise and had intimate relations with the slavewoman he was holding on guaranty? When discussing criminal law. 4:23-24 (ḥurrimat ʿalaykum … muḥṣanātu (muḥṣinātu?) mina ʾl-nisāʾi illā mā malakat aymānukum …). “The Valorization of the Human Body in Muslim Sunnī Law. For Abū Ḥanīfa. 75-76 (calling the master-slave relationship per se validating). Abū Ḥanīfa held that judges should avoid the ḥadd punishment in such cases. 5:25. 1996): 71-112. and 24:4). 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 this provided him a reasonable basis for believing that he had the authority. Fatāwā. no transfer of ownership. Qurʾān. and thus no legal basis for the act. 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. Law and Society in Islam (Princeton: Markus Wiener Publications.. he considered this same matter a case of ḥadd-averting doubt (shubha). ed. or ownership interest (milk) to initiate licit sexual relations with the slavewoman. See Ṭabarī. 12:61-84. On the same logic. 199-200 (same). temporary marriage (according to an early Meccan opinion 239    146 .146                                                                                                                                                                                                 contract according to a rubric of family rather than property law. 786/1384-5). Ibn ʿĀbidīn. Ibn Nujaym.145 As a result. Motzki. 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. 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). 3:480-89. see also Qāḍī Khan. But when discussing commercial law. but because those types of marriages can nevertheless yield the semblance of a marriage contract. “Koranische Sexualethik. al-Radd al-muḥtār. Ashbāh. entitlement. Amy Singer. 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 …).” 194-95. 85 (describing the development of Muslim fiqh over time as creating a predominance of the commercial over social exchange in slave law. 8:151-65 (discussing the active and passive readings of iḥṣān as applied to muḥṣanāt or muḥṣināt in these and other verses.” in Baber Johansen. 5:5.

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

20-36. wherein he rejects shubhat al-ʿaqd when discussing incestuous marriages and the like). 149 Ibn Nujaym. together with a third. 9:4150 (defining the types of shubha according to categories of contract as: ḥaqīqat al-milk versus shubhat al-milk. Other jurists seem to accept contractual shubha as mistake of law (shubhat al-maḥall).g. to the last scenario of contractual shubha. Abū Yūsuf and Shaybānī. Accordingly. 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). but rejecting it). Aḥmad alNasafī.. Kāsānī.148 His two most prominent student-companions. 743/1343). Hidāya. e. often objected to his rulings and took opposite stances on questions of ḥudūd imposition versus avoidance. Iran: Muʾassasat Usāma. Ibn Nujaym. 5:253 (noting that Abū Ḥanīfa added shubhat al-ʿaqd. Muḥammad Muḥammad Tāmir and Ḥāfiẓ ʿĀshūr Ḥāfiẓ (Cairo: Dār alSalām.. does not discuss the categories but indicates that he would adopt that category if he did.To be sure. See. regarding ḥadd-aversion in cases of prostitution and marrying a maḥram).                                                                   148 Only a minority of later Ḥanafīs followed Abū Ḥanīfa’s views of contractual shubha (shubhat al-ʿaqd). also called “the two Companions. ed. a contract between siblings was not just defective and voidable (fāsid). 3:566. Ibn al-Humām (d. These two students. 2000) (drawing from Qudūrī’s Mukhtaṣar and Shaybānī’s al-Jāmiʿ al-ṣaghīr). Marghīnānī.. these jurists adopted Abū Ḥanīfa’s rule that ḥadd liability is canceled in cases of incestuous marriages. because the two parties were ineligible to enter into the contract in the first place. jurists like Ibn al-Humām insisted that there are only two types of shubha: mistake-oflaw and mistake-of-fact. to the point that Ḥanafī law seems to adhere more to their doctrines than to those of their teacher. 5:249-52 (identifying the two categories as “shubha fī ʾl-fiʿl [or] shubhat al-ishtibāh” and “shubha fī ʾl-maḥall [or] shubha ḥukmiyya”). it was per se void (bāṭil). Zufar b. for instance. Ashbāh. al-Hudhayl. 28. 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.. Abū Ḥanīfa’s rulings did not always set the norm for his school. 861/1457). as he agrees with Abū Ḥanīfa’s positions in illustrative cases involving contractual shubha (e. often implicitly.g. In other words. all of which are therefore sometimes called shubha ḥukmiyya. Abū ʾl-Ḥusayn ʿAbd al-Majīd al-Murādzahī al-Khāshī (Zāhidān. 11:5901-07. ed. 241    150 . Fatḥ al-qadīr. Tajrīd. 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. al-Baḥr al-rāʾiq. Badāʾiʿ al-ṣanāʾiʿ. see ibid. identifying it as marital ambiguity (shubhat al-nikāḥ or shubhat al-milk). E. for example. 2003). Qudūrī. and shubhat al-ishtibāh fī mawḍiʿ al-ishtibāh fī ʾl-milk waʾl-nikāḥ).” played a considerable role in the development and spread of Ḥanafī law. For more information on the role played by these two companions. which is regarded as a type of ḥadd-averting shubha. See Tsafrir.150 For them. ḥaqq al-milk or ḥaqīqat al-nikāḥ versus shubhat al-nikāḥ. 5:5 (his work of fiqh. Likewise.149 And down the line. Tabyīn. They objected strenuously.g. Still others accepted contractual shubha outright. Zaylaʿī (d. 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. as noted on the margins above. Kanz al-daqāʾiq. Qudūrī. ʿAbd Allāh b. Early Spread of Ḥanafism.

he says. 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. 242    .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. 152 153 Ibn Abī al-ʿIzz. before discarding it in favor of the less cumbersome terms “pro-ḥadd” and “anti-ḥadd” factions.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. 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. according to one scholar. Baḥr al-rāʾiq.” Ibid. 200ff. 5:16 (discussing contracts of incestuous marriages. Tanbīh. specifically prohibited incest and the law otherwise details conditions for valid contracts. incestuous masterslave relations. This divergence of Abū Ḥanīfa’s disciples was a regular occurrence. 201. Justice.152 The Lawgiver. “One should keep in mind that one cannot know for sure whether these are indeed their original teachings. 4:148. Ibid.the prohibition against incest means that any agreement purporting to create a marriage contract between closely related relatives is not legally cognizable.”                                                                   151 See Ibn Nujaym. their marriage is annulled and they are to be separated.151 To say otherwise would amount to playing with the law and Muslim scripture itself.. 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. Punishment. 154 Christian Lange introduces this terminology to reflect the radically divergent opinions of Abū Ḥanīfa and his Two Companions on male sodomy. 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. Even where the parties are unaware of the relationship. violations of these rules then absolutely warrant ḥudūd punishments for zinā. Lange. and prostitution as a temporary contract for sex). upon discovery.

” 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). Internally. known attribution of the maxim to the Prophet                                                                   155 Tsafrir. * * * 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. xii-xiii. This is the focus here.”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. the students shared a sense of affiliation and transmitted doctrines—even when they diverged from those of their teacher—as “Ḥanafī.Nurit Tsafrir has argued convincingly that it does on the basis of both external and internal evidence. even if we cannot now identify its full contours. Abū Ḥanīfa and his students shared an approach that regarded the text as a starting point that created certain presumptions (aṣl. Externally. source authentication. Early Spread of Ḥanafism. These later Ḥanafīs invoked the maxim early on in their fiqh and jurisprudential works. with an emphasis on criminal law. 243    . In recognition of the divergent elements and the lack of full information about the doctrines of the time. pl. 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. and presumptions warranting ḥudūd avoidance. the group was viewed as a distinct and cohesive group. xi. Despite their divergences on substantive rules of ḥudūd imposition and avoidance. uṣūl) of ḥadd liability but that were only fully determined after an evaluation of competing values.. Ibid. Recall that the first surviving. A common stream within both currents was the acceptance of the ḥudūd maxim. she opts to call those associated with 2nd/8th Ḥanafism the “Ḥanafī circle” rather than “Ḥanafī school.

157 See Chapter 4. This is striking as he was in the Ḥijāz. by the time of the illustrious Ḥanafī jurist Qudūrī (d. 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. especially given the two very different currents of thought on ḥadd liability on particular points of law (such as the validity of contractual shubha).156 At the same time. 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. 370/981). 244    . 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. for a couple of centuries. Ḥanafīs were. The Mālikī legal literature suggests that it was perhaps most attested in Medinan jurisprudence. 483/1090).comes from the hand of the Ḥanafī jurist Jaṣṣāṣ (d. 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. Aḥkām. These developments are taken up in the next chapter. the maxim was prominent elsewhere. 370/981). Early Mālikīs Mālik too focused on delineating areas where the ḥadd liability applies and where it is canceled. Sarakhsī (d. It is at this point that Qudūrī. However. For                                                                   156 Jaṣṣāṣ (d. 428/1037). except that he used the ḥudūd maxim more liberally.157 IV. there is a thick juristic discourse about the contours of shubha and scope of the ḥudūd maxim itself. That hypothesis was no doubt based on the literary sources that anecdotally recorded Ḥanafī encounters with the maxim. 3:330. but as the legal literature shows.

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

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

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

proving the rape. such as indications that she had been crying or had called for help while being raped. 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. Mālik was perhaps drawing on the practice reported in Medina of the (Yemeni or Medinese) woman who came to ʿUmar crying. Case no. But when ʿUmar asked the husband about it.166 Here. 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. For support. 14 and citations therein. Jealous. See Chapter 2. 2:390.167 Through it. wherein the Prophet purportedly averted the ḥadd punishment from the victim and perpetrator. he claimed that his wife had given the slavewoman to him. he showed the extent to which he was shifting the burden of proof—when compared to other jurists—to the victim in some instances. But see Chapter 2. Mālik placed on the accused the burden of proof that any mistake as to an alleged sex crime was an honest one. whereby ʿUmar believed that she had been raped and ruled that there was no ḥadd liability. where the man was presumed guilty unless he could prove otherwise. He did not allow mere claims of rape. the wife brought the case to ʿUmar—signaling that she had not given her permission for sex and that the relations were not licit. 15 (Case of Rape. and this turned out to sometimes create a tough standard for the victim to meet. Likewise. particularly when they went against other circumstantial evidence suggesting that zinā—perhaps of the non-coerced kind—had occurred. Muwaṭṭaʾ. Appendix. Case no. she was required to produce some evidence of the marriage or that she was raped. much less welcome. the judge was not to accept her claim on her word alone. 248    167 . echoing the situations above. Instead. ʿUmar ruled that unless the man could produce proof of                                                                   166 Mālik. without requiring strong evidence). Appendix.

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

Muwaṭṭaʾ. Mālik.. 7:2459. 7:2459-60 (according to Ibn al-Qāsim). 2:397. Mudawwana. Ibid.                                                                   170 Saḥnūn. 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.170 Like Shāfiʿī. objective proofs of criminality were necessary to trigger actual ḥadd liability. He accepted the tradition that “any intoxicant is wine (khamr). he defined the prohibition against drinking to include any beverage that was intoxicating.173 With his focus on convention-backed textual clarity from the sources and interpretations of Sunna.not. And once those indicants were proved in a courtroom. he held. such that the former incurred ḥadd liability while the latter did not. as exemplified in Ṣafwān’s Case. 250    . 172 173 171 Saḥnūn. 7:2420 (on bestiality).” and held that Medinan practice affirmed that rule. This of course differs radically from the Ḥanafī position discussed above. 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. as described below.171 Criminal liability for drinking. Mudawwana. 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).172 Mālik’s discussion of the elements was not very detailed and he made no mention of shubha. he held—along with the other jurists—that no intervention was allowed.

as has been explained in the samāʿ of Saḥnūn. ʿUtbī. 2:293. In potential cases of theft or zinā. 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. in Ibn Rushd al-Jadd. Most involve cases of theft or zinā where the ownership interest or right to enjoyment was unclear. Some are by now familiar. 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). 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.175 The same goes for spouses who steal from each other in a house they share.. nor had property been taken from. someone with whom there was no plausible ownership interest—albeit erroneous. or sex enjoyed with.176 In all of these cases.B. 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.174 Similarly. or servants who steal from their masters where they have free access to the house. 2:402-04 (calling it deception or fraud (khalasa or khiyāna) rather than theft). 16:165. In each situation. Ibn Rushd says that this is considered a ḥaddaverting shubha. 175 Ibid. Mālik identified some plausible doubt (shubha) as to whether the accused had a legitimate ownership interest or basis for his or her actions. Bayān. He concluded that there is no ḥadd liability in the above scenarios because the money had not been stolen from a secure location. Mālik. Ibid. there was some                                                                   174 Ibid. Ḥudūd Avoidance 1. Criminal Elements and Completion Mālik looked to some of the same instances as did Shāfiʿī and early Ḥanafīs when contemplating situations of ḥudūd avoidance. 251  176   . Cf. Muwaṭṭaʾ.

in the same way that objective indicia of a completed crime create ḥadd liability. in other words they had to have an intent to rebel without such valid interpretation). This doctrine extended in short order as Mālikī law spread beyond Medina and Egypt to Andalusia.178 Likewise. Mālik spelled out that. 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.measure of doubt. Rebellion and Violence. Thus. merely subjective indicia voided it. and that “the ḥadd is averted from …: yudraʾ ʿanh al-ḥadd” a man who has sex with his son or daughter’s slavewoman. 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. 2:406. Accordingly. and it is in this vein that Mālik invoked the ḥudūd maxim in such cases. Cf. 252    .177 In other scenarios. and the law only punishes the latter. Mālik was explicit that the ḥadd does not apply when the elements of the ḥadd crime have not been completed according to objective criteria. though this is illegal. Ibid.179 These are bad intents. 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. not bad acts.                                                                   177 Ibid.. or a man sitting with a woman and desiring her but not actually pursuing sex with her. 178 179 180 Ibid.180 For Mālik. baghy (rebellion) did not connote criminal liability itself.. 241-44 (noting that. 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. Abou El Fadl. even though that too is illegal). as the jurists developed the term. neither would there be ḥadd liability for a man who has an alcoholic drink in his hands but has not actually sipped it.

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

184 According to Ibn al-Qāsim. Case no. The judge.: bio-bibliographische Notizen aus der Moscheebibliothek von Qairawān (Wiesbaden: Harrassowitz. which in turn appealed to the example of the Prophet. Jīdī. See Chapter 2. Appendix. Ibn al-Qāsim explained. and manner of commission crimes to ensure that before he imposed ḥadd liability. 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. was in keeping with Mālik’s criminal law policy. In the Case of Māʿiz. 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. It generally received much praise from the major scholars.e. 13.185 Likewise. though the act itself otherwise counts as a ḥadd crime. Thus.H. In other words. see idem. judges were to investigate each case for the presence of doubt of the type that would trigger the ḥudūd maxim (i. 1997). This. he said. Mudawwana. JH. D. 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. preferred over the other canonical Mālikī works. Beiträge zur Geschichte der Ḥadīt und Rechtsgelehrsamkeit der Mālikiyya in Nordafrika bis zum 5. was to inquire about the time.. the technical legal definition of the crime with all its elements were met. it may be that the value does not rise to the level warranting the ḥadd sanction of hand-amputation. 184 The Mudawwana was known as the basis for binding legal judgments and advisory opinions (qaḍāʾ and iftāʾ). al-Madhhab al-Mālikī. method.recorded the Mudawwana. 7:2463 (wa-innamā ʾl-qaṭʿ ḥadd min al-ḥudūd fa-yanbaghī liʾl-Imām … [an] yakshif fīh al-shuhūd kamā yakshifuhum fī ʾl-zinā). and was called “the second source [of law]” (al-aṣl al-thānī) after the Muwaṭṭaʾ. 254    . Mālik was the first jurist to explicitly call upon the judge to investigate criminal cases with an eye to ḥudūd avoidance. 63-66. Mālik asked defendants about the precise nature of their crimes. 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. 185 186 Saḥnūn.

the problem explained much of the shifting procedures of the criminal trial. if a thief confesses to stealing but adds that he only has a single dirham left of the stolen money. but two other witnesses then testify that someone else was the culprit. 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. 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. 188 Saḥnūn. given the ever-present specter of mistaken or false testimony (shahādat al-zūr). ʿUtbī. if a thief steals an item worth three dirhams of debased money. Mudawwana. See Whitman. For example. Reasonable Doubt. 255  189   . Effective means of doing so included being attentive to issues of evidence and adopting heightened mens rea requirements. For an analysis. that they were not to be disciplined with punitive measures for the mistake. Bayān. The specter of false testimony was also significant elsewhere. they could receive a discretionary punishment. 114-16. 549-50. “I prefer to                                                                   187 This was a significant issue in Muslim evidentiary contexts from the earliest periods. as measured during the Prophet’s time. 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. he may be punished (yuʿāqab). and that their testimony was to be rejected thereafter). but that if they were not known to be upright. 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.189 As well. see ʿAbd al-Majīd. In such cases generally.188 In a similar vein. ʿUtbiyya. the conflict does not itself prove that the first two witnesses had committed perjury or that someone else was in fact the culprit. Ittijāhāt. their mistake was to be overlooked. and that their testimony was to be thereafter accepted (wa-uqīlā wajāzat shahādtuhumā). Ibn al-Qāsim explained. and passim. 7:2479 (noting that if the first two witnesses were upright and spoke to the best of their knowledge. To be sure.Following his teacher. which would require firmer evidence. in Ibn al-Rushd al-Jadd. Ibn al-Qāsim insisted that judges should evaluate questions of ḥadd liability with an eye toward avoiding ḥudūd sanctions. he held that judges should be open to witness testimony beyond the initial testimony presented. 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. 16:220. 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.

including a fifth wife. Ibn al-Qāsim called the situation one of shubha. 256    192 .. but claimed that he did not know that he would receive the ḥadd penalty for doing so. and a woman otherwise barred from marriage (maḥram)) . Mudawwana.192 Thus. offenders would have had to have both entered such marriages purposefully and have known that they were prohibited. a thrice-divorced woman.avoid the ḥadd sanction because of the presence of doubt (aḥabb ilayya an yudraʾ al-ḥadd biʾl-shubha). for situations where a father takes from his son. Mālik’s knowledge requirement entails awareness of both the illegality and the specific criminal punishment associated with the act. But Ibn al-Qāsim added that for ḥadd liability to attach. he would not receive a ḥadd punishment. like a closely related relative. 7:2411 (noting that marriage to classes of per se prohibited partners. a foster or actual sister.191 This meant that there were some cases wherein even purposefully marrying prohibited women would not incur ḥadd punishments. 191 Saḥnūn. it may be illustrated by the following scenario. Even if a man married a woman during her divorce waiting period.”190 As for the heightened mens rea requirement. 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). 16:210 (reporting that Ibn al-Mawwāz held an opposite view). 7:2419 (commenting that he does not remember Mālik’s opinion at the moment. Mālik subscribed to the majority view that a man incurs ḥadd liability for purposefully marrying a legally barred partner (whether permanently barred. Ibid. When discussing Mālik’s ruling under the rubric of theft. for Ibn al-Qāsim. admitted to having known of the illegality of marrying during that time. if purposeful and with knowledge of the prohibition (ʿāmidan ʿārifan biʾl-taḥrīm) would incur ḥadd liability. and held that                                                                   190 Ibn al-Rushd al-Jadd. or temporarily so. Bayān. like a woman during her divorce waiting period).

195 Here. Ibid.the ḥudūd maxim applies (wa-qad qīla ʾdraʾū ʾl-ḥudūd biʾl-shubahāt). Ibn al-Qāsim also considered ignorance of the law to be a type of shubha that creates a ḥadd-averting excuse. For Ibn al-Qāsim... ḥadd liability remains.. 194 195 196 Ibid. Ibn alQāsim expanded on Mālik’s examples of canceling ḥadd liability for spouses or servants who share a house. 7:2472. not knowing that it is in fact illegal to grant such permission. the guest is not ḥaddeligible because of the shubha created by the living arrangements under a single roof. 7:2417-18 (presumably this is where he does not know of the illegality. 7:2472.193 Likewise. 257    . if a man welcomes a guest inside his house. Ibid. while a wife who takes property from a house that she shares with her husband will not be ḥadd-eligible. Thus. If the guest then takes or uses property in the house. that is. if she takes her husband’s property from a house other than the one they share. If a master allows another man to have sex with his slavewoman. even if the owner has locked it away and the guest has to break the lock to steal it. 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. or if a servant takes money belonging to his master or mistress. 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. if the second person receives this permission—                                                                   193 Ibid.. 7:2469.196 Likewise. because the man allowed him into his house. as he says in these same pages that the one who loans a slave woman is ḥadd-eligible). he has essentially created a situation wherein he offers access to his belongings contained in the house.

For further discussion. is similar to the shubha created by the ownership interest conferred by the permission. that would be enough to establish the sale or marriage claim and to thus avert the ḥadd sanction (daraʾat ʿanh al-ḥadd). as in Mālik’s rule on qadhf above.197 This. But where the offender claims to have either bought or married the slavewoman. the ḥadd punishment will not fall in cases where the testimony is implausible. and in the process—by creating a                                                                   197 Ibid. For example. one might compare this to Abū Ḥanīfa’s ḥudūd avoidance in commercial law contexts. he will be excused. If he did so. 199 200 Thus. he ordinarily would receive a ḥadd penalty. 198 Interestingly.200 Yet he invoked the ḥudūd maxim liberally. (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. For the shubha to be ḥadd-averting. If someone has sex with a slavewoman who belongs to someone else. the mistake or claim of ignorance would have to be plausible and sometimes would require proof. whether or not he knows of its legality. through swearing an oath. again. ḥadd liability might be removed so long as the accused could prove his claim if the slavemaster denied it.198 The proof that Mālik required for claims of ignorance remained throughout his disciples’ elaboration of the law. 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. if a victim of theft says the 258    . but is perhaps explained by the rule requiring knowledge both that the act was illegal and that it would carry specific ḥadd liability. Ibid. It may signal that Mālik too privileged recognizing commercial law instruments above ḥadd imposition. see below. 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).199 From this discussion. or contradicted by more reliable testimony. 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. 7:2411-12.despite its illegality—and has sex with the slavewoman. This is odd. for example. for instance..

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

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

but in law manuals had to address concerns about what the text said in order to determine what the law was. as filler for the gaps between the lines of text.. By and large. As before. 4:337 (wa-qad warada idraʾū ʾl-ḥudūd biʾl-shubahāt .) As such. 261    .. 617 (citing the ḥudūd maxim as a Prophetic ḥadīth). the primacy they placed on subservience meant that ḥudūd imposition was mandatory. Thus. and—surprisingly—emerged as broader champions of the rule than the Iraqi jurists. the ḥudūd maxim only arose when the text itself or the surrounding evidence gave no clear answer about criminality or culpability.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. Ḥāshiya. (For if the text was clear and the evidence certain. Conclusion As conceived by the jurists. Instead. V. they looked to evidentiary infirmities for ḥudūd avoidance. of uncertainty. al-Thamar al-dānī. their dispute was over what constituted normative text and authoritative bases for ḥudūd imposition versus avoidance. these jurists did not employ the ḥudūd maxim liberally. They were all textualists. Azharī. Only after this first-tier interpretive process would the maxim weigh in. 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. Mālik’s followers were an exception to the rule. these developments are covered in the next chapter. the province of maxims was the province of the absence of text. Nor did they offer broad based theories about definitions of shubha. jurists of this early period knew of the maxim. of doubt.). and insisted on ḥudūd imposition in the substantive criminal law.                                                                                                                                                                                                 1230/1815). Typically.

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

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

By the time of the rise of legal maxims literature as a genre.developed in the Ḥanafī school. once the ḥudūd maxim had acquired Prophetic authority. Ḥanafī jurists were free to fold it into the very definition of substantive criminal laws. then examine shared concepts in the Shāfiʿī and Mālikī schools that converged around theories of doubt within regimes of Islamic legal pluralism. Over this vast 264    . 970/1563). 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. They could also push the maxim to a position of centrality in their chapters on criminal law in legal treatises. I end with a discussion of the limitations that substantive moral values placed on the expanded notions of shubha developed in these schools. I will point to many of the examples that jurists used to fill out their doctrine. While demonstrating the diversity of thought between and among Islam’s legal schools in this “professional” period. 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. II. as shown in the work of 10th/16th century jurist Ibn Nujaym (d. Developing Ḥanafī Shubha Ḥanafīs developed the doctrine of shubha gradually. as the dominant one for much of Islamic legal history. By the 4th/10th century. the ḥudūd maxim not only appeared in the discussions of criminal law in legal treatises but framed them. Subjectivity and Mens Rea: Ḥanafī Shubha A. 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.

wherein ḥudūd avoidance was generally relegated to evidentiary matters whenever there was no clear statement of law. 1220-23 (faṣl al-shubha). faṣl al-sharṭ (same). 430/1039). Salim Özer (unpublished PhD thesis. in Debbusi’nin “El-Esrar fi’l-Uṣūl ve’l-Furu’” Adli Eserinin Tahkik ve Tahlili. 430/1039) was the first known leading Ḥanafī to move beyond the incidental negative acknowledgement of shubha of the earlier period. even if she and her spouse know of                                                                   1 See Abu Zayd al-Dabūsī (d. Abū Zayd al-Dabūsī (d.g. 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. 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. 265    . and he places shubha in the middle of the two. 1997): 151-1945. faṣl man yajib ʿalayh wilāyat aliqāma (sentencing). often with an added section on carrying out the sentence. See ibid. 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. Kitāb al-Asrār.expanse of legal history.1 Within this discussion. 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... The sections in the chapter on zinā are as follows: faṣl al-rukn waʾlmaḥall (substantive elements). he devotes an entire section to detailing the instances of shubha that may arise. faṣl al-shubha (shubha). marriage during a woman’s divorce waiting period). Turkey].2 Some of the scenarios that he discusses are by now familiar: if a woman enters a marriage contract that is indisputably defective (e. 2 Ibid. for zinā. He generally divides sections into discussions of substantive elements and evidentiary/ procedural elements. ed. the maxim and instances of ḥudūd avoidance served as bases for outlining model cases of application. As ḥadīths. 1213-33. Thus. Erciyes Üniversitesi [in Kayseri.

Abū Yūsuf and Shaybānī held that the contract in this scenario is per se void and they argue that this is so by consensus. Ibid. though Dabūsī outlines some evidentiary grounds as well. 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. For them. (5) a woman having sex with a minor or insane man. it is analogous to trying to sell a free person—a non-starter from the first instance because of the invalidity of that aim. 266    .                                                                   3 Ibid. and Zufar. the second scenario here shows Abū Ḥanīfa and Shaybānī agreeing against the opinion of Abū Yūsuf. a contract to rent a woman for sex). NB: The “currents” do not always break down as pitting Abū Ḥanīfa against his two students. 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.4 Throughout his discussion. the grounds for ḥudūd avoidance concern ambiguities about the substantive criminal law.. 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. 4 Further examples include: (1) prostitution (lit. For him. For the latter opinion. the ḥadd sanction would apply simply because there is no shubha in fact. (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. In other words. (3) a man having sex with the slavewoman belonging to his wife. Shaybānī. such that no contract comes into being in the first place. even if defective. mostly centered on the law of contract. 1221-23. can render the couple ḥadd-liable. (4) a man admitting to having sex with a woman who denies it. for instance.3 In these and other scenarios that Dabūsī adduces.. they would not be ḥadd-eligible by Abū Ḥanīfa’s rule though they would be according to his disciples Abū Yūsuf.the illegality of consummating the marriage. 1221 (per se void: bāṭil).. ḥadd liability is voided.” which he took to have arisen as soon as two parties formed a contract.

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

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

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.. According to Dabūsī.11 This “shubha of deficiency” is thus another type of shubha. He reads Ṣafwān’s Case as providing support in his favor and against Shāfiʿī’s reading. 1205-11. The Prophet only made that statement. 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. referring to a deficiency in the completion of a substantive criminal element. Dabūsī details. ibid. 269    . the old example that arose in Ṣafwān’s Case is first on his list. 1205.12 Another type of shubha. the ḥudūd maxim applies to avoid the ḥadd sanction: waʾl-shubha tudriʾ al-ḥadd.. See Ibid. and noting that where there is shubha (here: shubhat al-ʿadam). 1200 (discussing the punishment for highway robbery. 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..14 Here.“taking. disagrees. is “shubha that removes [ḥadd liability] after the completion of the crime by some [evidentiary] contingency. If a thief comes to own a stolen item after being sentenced but before the sentence is carried out.... 1199.15 Shāfiʿī. 15 Ibid. 13 14 12 Ibid.” Zufar. however. 1205 (defining shubhat al-ʿadam as “a deficiency in an element or condition for completing of the crime: nuqṣān al-sabab waʾl-sharṭ).).. disagreed.”13 He addresses this type of doubt in the section devoted to shubha. 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). Dabūsī                                                                   11 Ibid. he holds that the ḥadd punishment is to be avoided.. Ibid. he notes. for imposing ḥudūd sanctions was a known obligation performed out of subservience to the divine and as a means of spiritually purifying the offender. Cf. 1205 (shubha musqiṭa baʿd tamām al-ʿilla bi-sharṭihā).

moreover. 17 18 See Dabūsī. some believe that he did not in fact impose the ḥadd punishment under the circumstances. For other discussions of shubha in matters of discretionary punishments. 231 (masāʾil al-shubha al-musqiṭa liʾl-kaffāra).18 But for equitable concerns.. 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.. For further discussion. and spiritual expiation for violations of ritual law. the ḥadd should not be imposed.maintained. 1250 (istiḥsān). then converts but continues to drink wine and claims that he did not know it was illegal. see ibid. 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. 11:5989-90 (noting that at least one narration reports that the Prophet did not apply any ḥadd sanction). and there is no proof to the contrary.. 996-1007 (kitāb al-ikrāh). see Qudūrī. 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.16 In the chapter on wine consumption. 1244-50 (kitāb al-ashriba). Ibid. Tajrīd. 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 …). laws of retaliation.. 1205-06. 1122 (kitāb al-diyāt: faṣl al-shubha biʾl-āla). Ibid. On the basis of the Ḥanafī rule. 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.19 Dabūsī says. Asrār. Dabūsī discusses intra-Ḥanafī differences as to when ḥadd liability is due or may be avoided for different substances. 270    .20                                                                   16 Ibid. because he did not want the crime to be known publicly. 19 20 Ibid.17 One scenario involves a non-Muslim who lives outside of Islamic territory and wages war against Muslims.

the disagreement was about whether there was cause for shubha. those works list presumptions (uṣūl) of Ḥanafī law. Abū Zayd al-Dabūsī. in contradistinction from divergent Shāfiʿī views). Cairo: Maktabat al-Kulliyyāt al-Azhariyya.g. ed. throughout his treatise. reflecting both substantive rulings and methodological principles particular to that school. e. Muṣṭafā Muḥammad al-Qabbānī al-Dimashqī (Beirut: Dār Ibn Zaydūn. After detailing the contours of the law. Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence (Leiden: Brill. These latter questions were expressed by the ḥudūd maxim. 340/952) are regarded as the first Ḥanafīs to pen works of legal maxims: Taʾsīs al-naẓar and Uṣūl respectively (see. pointing out instances where reasonable jurists both within his school and from without could disagree. Instead. However. see Ahmad Atif Ahmad. the stated purpose of which is to show the relationship between school-presumptions and substantive legal rules. n. 428/1037) also rendered the ḥudūd maxim central in his discussions of criminal law. Dabūsī and an earlier scholar ʿUbayd Allāh al-Karkhī (d. 271    . 12:517). Dabūsī highlighted difference and ambiguity together. 2006).. supplement.g.In this way. as such. “Ḳawāʿid Fiḳhiyya. each stated presumption is accompanied by examples of application. Take just one area of law: sex crimes (zinā). For an introduction to takhrīj literature. he detailed scenarios of it in extensive discussions that explored and defended the Ḥanafī position on disputed areas of criminality. head of the Ḥanafī school in Iraqi lands Aḥmad b. 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). or whether jurists bent over backward even to the point of implausibility to find it.. Wolfhart Heinrichs. These works are examples of takhrīj literature (takhrīj al-furūʿ ʿalā ʾl-uṣūl). takhrīj works are related to treatises on maxims but distinct from them in content and purpose. Taʾsīs al-naẓar. art. 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. He did not make separate categories for shubha.21 During the same period in Baghdad. See. Muḥammad al-Qudūrī (d. Sometimes. which Dabūsī’s discussion of shubha folded into every discussion of criminal law on both substantive and procedural grounds.d). 127 (listing presumptions governing theft and when ḥudūd liability versus ḥudūd avoidance is warranted. Qudūrī raises six scenarios that                                                                   21 Incidentally. e.” EI2. These presumptions are short statements of law explaining or justifying dominant Ḥanafī positions and differentiating them from positions of other schools in disputed areas.

and counter-points to possible Shāfiʿī objections to his defense. 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. when discussing coercion and rape. Qudūrī grouped these model cases under the title “doubts and ambiguities” (shubahāt). 11:5896 (quoting the ḥudūd maxim as a prophetic ḥadīth: idraʾū ʾl-ḥudūd biʾl-shubahāt). but who it later becomes clear is illicit. He defended the Ḥanafī view based on Abū Ḥanīfa’s doctrine that fear prevents desire and arousal. the ḥudūd maxim played a key role. 272    . For example.23 If Shāfiʿīs were to respond by arguing that the Prophet required judges to follow the ḥudūd maxim. ḥudūd avoidance was due. (discussing voluntariness literally as “choice”: ikhtiyār). having sex with a woman with whom he cannot legally enter into a marriage contract to make sexual relations licit. in the first scenario. prostitution (or paying a woman for sex).. The six scenarios concerned whether a man will be ḥadd-liable for: coercion of a man to commit zinā or to rape a woman. For each scenario. 11:5896-98 (al-khawf yunāfī ʾl-shahwa waʾl-intishār). 23 24 Ibid. or bestiality. Presumably. Throughout.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.22 so their presence signifies voluntariness.fall outside of the literal definition of zinā. having sex with a woman thinking that he had a legal relationship with her that make her licit. Ibid. rather. male sodomy. he noted a Ḥanafī position that there was ḥadd liability as against the Shāfiʿī position that there was not. the legal basis for defending the Ḥanafī rule. arising almost as if an arbiter in the dispute between the two schools—though not with absolute sway. Qudūrī laid out the nature of the difference between Ḥanafī and Shāfiʿī positions.

Shāfiʿī either treated it like zinā or held that the death penalty applied automatically.25 Furthermore. men renting women for sex.principle governing criminal law is beyond dispute. there was an early precedent—one that even Shāfiʿī would consider textual proof—to back up his position. a woman sought water from a shepherd. The sources report that during the time of the second caliph ʿUmar. marriage contract that at least created shubha as to ḥadd liability. The dispute is about whether there is shubha in this case.e. 273    . Ḥanafīs have concluded that there is not. As for acts of “prostitution. the woman had not acted voluntarily or with criminal intent. who refused to give it until she had sex with him. the matter was brought before the caliph for adjudication. As such. though defective.. who avoided imposing the ḥadd punishment. And on their evaluation of matters of fact.. 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. 11:5903.” i. 26 27 Ibid.27 A similar argument applied to male sodomy. Whereas Abū Ḥanīfa held that no ḥadd liability would result. 5908-09. When she did. 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.. After listing textual legal and rational bases to defend                                                                   25 Ibid. Ibid. sex acts under those auspices cannot be considered zinā by definition. 5908-09 (fa-daraʾa ʿanhā ʾl-ḥadd).26 One reading would be that he did so on the basis of necessity. Qudūrī added.

32 Sarakhsī discussed intra-Ḥanafī differences over ḥadd liability for the following: sex between a man and the                                                                   28 Ibid. 9:61.Abū Ḥanīfa’s position. creates doubt (here: shakk). making a linguistic argument that male sodomy (liwāṭ) is distinct form fornication or adultery (zinā) by convention. the ḥadd sanction is not due. and in the face of doubt. 66. In addition to coerced sex and rape. 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. 29 30 See ibid. prostitution (or short-term contracts for sex). which became one of the central works of Ḥanafī law with enduring relevance even in later periods. he held. and accompanying text (citing Qudūrī. applied to questionable or disputed instances of theft and other areas of criminal law. 4:16: requiring only some type of discretionary punishment (adhā) on two men who engage in male sodomy. Ibid.. notes 135-41.30 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. for him. but added to. noting that some scholars assert that it certainly does and others insisting that it does not. 483/1090) approached shubha similar to the treatment given it by Qudūrī of just a few generations before in Western lands. For an analysis of Ṣafwān’s Case. 5909 (citing Qurʾān. 274    .31 His list of scenarios overlapped with. In his celebrated work of law. The Persian scholar Shams al-Aʾimma al-Sarakhsī (d. The disagreement. 5910.. Mabsūṭ. 9:41ff.).. It is to be avoided. He outlined differences of opinion as to whether male sodomy falls under the technical definition of the ḥadd crime called zinā. al-Mabsūṭ. etc.28 Qudūrī ends with a note about doubt.29 The same. Tajrīd. 31 32 See Sarakhsī. 11:5986-87).

9:63. 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.33 sex between a Muslim and non-Muslim. 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). 9:4150. making its absence an element of the crime itself. 587/1191) expanded the scope of shubha further. ḥaqīqat al-nikāḥ. Badāʾiʿ al-ṣanāʾiʿ. whether the parties                                                                   33 Ibid. Kāsānī is not just defining zinā. 65 (similar scenario).. 34 35 36 Ibid. provided they are subject to Islamic law (iltazama aḥkām al-Islam). 275    . 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). where the act occurred.35 The Syrian scholar Abū Bakr b.36 Here.. 9:66 (daraʾa ʿanh al-ḥadd). whether bestiality or necrophilia counted. 93:1. 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. ḥaqq al-milk. They debated voluntariness and coercion.. whether the relations were anal or vaginal. He folded the concept of shubha into the very definition of the substantive crime of zinā.34 and sex between a man and the slavewoman belonging to a free woman with the claim or belief that he had bought her. Masʿūd al-Kāsānī (d. and in the absence of the existence or semblance of a masterslave or marital relationship (ḥaqīqat al-milk. He defined zinā as follows: voluntary non-anal sexual relations between a man and a (living) woman in Muslim territory (dār al-ʿadl). wherein God tells the Prophet that he made him self-sufficient. or shubhat al-nikāḥ). shubhat al-milk.slavewoman of a relative within the household on the mistaken belief that she was licit. Ibid. Kāsānī. 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.

n. Ibid. His list includes the following unnamed categories of doubt or ambiguity (1) missing criminal elements. this definition reflected certain positions held within the Shāfiʿī school that were not universally agreed upon. 5:4ff.. without a legally validating relationship. Ibn Nujaym commented that Nasafī’s definition was incomplete and underinclusive. For a discussion of these positions. or marriage to a woman while in the midst of her divorce waiting period from a prior marriage.p.37 For evidence. a man having sex with a jointly owned slavewoman. he said. but that this is disputed by his two students Abū Yūsuf and Shaybānī. and that Zaylaʿī’s definition—with some modification—would be more accurate. al-Baḥr al-rāʾiq. sanity.. see Ibn Nujaym (d. claims of 276  39   . for example. 1893?). and on the margins Minḥat al-khāliq ʿalā ʾl-Baḥr al-rāʾiq by Ibn ʿĀbidīn ([Cairo?]. The basic definition of ḥadd-incurring zinā. we look to what he specifically enumerated as cases of shubha. that is. 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. it is implicit that he defines the act as having been committed illegally. offered a simple definition of vaginal sex without a legally validating relationship (milk) and without shubha. is “penetration of a penis into the vagina of a naturally desired woman: kawn al-ḥashafa fī qubul mushtahāt. 970/1563). 710/1310). Commenting on Ibn Nujaym’s formulation. 9:4150-53 (noting that the following categories may not be ḥadd eligible: minors and the insane.38 (2) defective contracts. such as a man having                                                                   37 As we will see. what kind of relationships were legally validating. 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. such as the absence of majority. and where the law would entertain the plausibility of confusion or mistake. necropheliacs. 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. non-Muslims (ḥarbī)).had to be Muslim or not.. 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.39 (3) mistake of law. those who engage in male sodomy. 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). Nasafī (d. but noting that in both cases.” he held that the additional “elements” are merely conditions (shurūṭ) that are not part and parcel of the essence of the act.” 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). 38 Ibid. All the items on the list were once (and some remained) matters of shubha. commentary on Nasafī’s Kanz al-daqāʾiq (above). rape victims. or heterosexuality.

sex with a slavewoman belonging to his parents or held on security for another transaction. 42 43 41 40 Ibid. 9:4158-59 (noting that this is not legal doubt (shubhat al-ishtibāh) as some claim. but shubha that rests on some legal basis and as such requires ḥadd aversion.” which “are not present with shubha. but his aim is clear.. “ḥudūd sanctions are punishments for completed crimes. Thus. because there is no text that can create the impression that there is any automatic right to enjoyment of siblings’ property.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. 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). in the theory of criminal law.”43 The ḥudūd maxim is an expression of this doctrine. 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))... Ibid. 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. 9:4156-57. 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. In sum. Ibid. 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.’”42 In other words. 593/1197). and finally. Ibid. See ibid. Kāsānī’s contemporary in the East (Central Asia). 277    . 9:4150 (idraʾū ʾl-ḥudūd biʾl-shubahāt). having sex with the slavewoman belonging to a brother or sister would not give rise to ḥudūd avoidance.41 Kāsānī has named only two of these multiple categories specifically—legal mistake (shubhat al-ishtibāh) and contractual ambiguity (shubhat al-ʿaqd). Burhān al-Dīn al-Marghīnānī (d.

Bensley. along with an exhibited understanding of the technical meaning of zinā. 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. where it occurred. trans.. and place. The Hedàya. 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”). and with whom. or that                                                                   44 His treatise. or Guide: A Commentary on the Mussulman Laws (translated by the order of the Governor-General and Council of Bengal [Warren Hastings]) (London: T. it requires four witnesses to the act by four reliable witnesses who offer uniform testimony as to the time.” Qurʾān. 278    . was the subject of numerous commentaries. see Charles Hamilton.45 The judge is not to simply accept the testimony at face value. the method in which the sex act was performed. These evidentiary standards are stringent and Qurʾānically grounded: for zinā. as The Hedaya: Commentary on the Islamic Law (New Delhi: Kitāb Bhavan.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. Meron. This draws on the Prophet’s early precedent of questioning Māʿiz which set in place the requirement to approach ḥudūd accusations with caution. but by outlining evidentiary standards of proof to secure a conviction. interestingly—as he explains himself—his translation is from a Persian translation of the Arabic original. 2:736 (iḥtiyāṭ). Hidāya (2000). “Marghīnānī: His Method and His Legacy. For further discussion of Marghīnānī and the legacy of his work arising out of that conference.. and beyond. and glosses spreading from Central Asia to Arab lands. a group of scholars gathered to discuss Marghīnānī at a conference organized by the Uzbekistan Academy of Sciences near his birthplace. but is to ask each witness about what he saw. manner. 1791) (repr. 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. In November 2000. 46 45 Ibid. and a ḥadīth requiring four witnesses: iʾti bi-arbaʿa yashhadūna ʿalā ṣidq maqālatik. 4:15: “produce four witnesses from amongst yourselves [to prove accusations of zinā]: fa-ʾstashhidū ʿalayhinna arbaʿatan minkum. 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). For the Hamilton translation.44 In the Hidāya.46 “It may be that some act other than [the technical definition of zinā] occurred. 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). what time. al-Hidāya. Turkish lands to the Indian subcontinent. supercommentaries. which explains the Persianized forms of his English renderings of technical legal terms from the Arabic. Marghīnānī. 1985)).” Islamic Law and Society 9. see Y. 2:735-36 (quoting Qurʾān.

Ibid.”52 As did Kāsānī. (waṭʾ al-rajul al-marʾa fī ʾl-qubul fī ghayr al-milk wa-shubhat al-milk). the absence of shubha—on evidentiary or substantive grounds50—was regarded as a necessary element of the definition of zinā. 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. 2:748 (idraʾū ʾl-ḥudūd biʾl-shubahāt). (yastaqṣī fī dhālik iḥtiyāṭan liʾl-darʾ). “avoid criminal sanctions in cases of doubt. he outlines. The precise meaning of zinā that warrants a ḥadd sanction. or there was otherwise some legal doubt (shubha) of which the accused or the witnesses are unaware … . places the ḥudūd maxim front-andcenter. Ibid.. 48 49 50 51 52 Ibid. is the prophetic ḥadīth. He delineates two types: mistake of law or fact (shubha fī ʾl-                                                                   47 Ibid.48 Why? Because the Prophet himself directed judges to “avoid ḥudūd sanctions as much as you can. and the inclusion of the non-shubha requirement.”51 Supporting that definition.”47 For these reasons. Marghīnānī gives that definition after discussing the evidentiary matters. Ibid.: without an ownership or quasi-ownership status].. is “a man having vaginal sex with a woman without a legally validating relationship of semblance of one [lit. he lists several cases of shubha scenarios that have arisen in prior legal debates amongst jurists. (idraʾū ʾl-ḥudūd mā ʾstaṭaʿtum).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]. he says. 279    . and again. 2:248 (taʿarrī ʿan al-milk wa-shubhatih). But he also defines shubha. Ibid.”49 As such.

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

Nasafī in the “East”—from the Persian town of Nasaf—presents the same two categories and examples of each. explaining that both refer to situations where the legal rule itself is unclear. After Marghīnānī. Kanz al-daqāʾiq. except that he elaborates on each category and model case. 281    . Further. 3:539ff.64                                                                   61 Nasafī. and elaborates on the instances of shubha that have arisen in Ḥanafī law. 62 63 64 See Zaylaʿī. reiterates Marghīnānī’s explanation of how and why the doctrine of ḥudūd avoidance governs criminal law. but he collapses contractual and legal ambiguity into a single category of legal uncertainty (shubha ḥukmiyya). which includes the absence of shubha as an essential element.61 Commenting on Nasafī’s short work. subsequent generations of Ḥanafī jurists mostly elaborate on his formulation. His work is like an abridgement of Marghīnānī’s. 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. Ibid. 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. 710/1310) and Fakhr al-Dīn al-Zaylaʿī (d. Tabyīn. 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). Ibid..62 He repeats Marghīnānī’s definition of zinā. Zaylaʿī in the “West”—in Cairo—pursued a similar tack. 743/1343) elaborate on the categories of shubha that he identified.Ḥanafī opinions surrounding ḥudūd avoidance. 3:566-67. 3:539-68. Abū ʾl-Barakāt al-Nasafī (d.. 1:563-66.63 He contributes a slight reformulation of the shubha categories. In the 8th/14th century.

65 His contemporary Egyptian colleague Ibn al-Humām (d. With the waning and breakup of the ʿAbbāsid empire in the 5th/11th century. Badr al-Dīn al-ʿAynī (d. 282    . Fazlur Rahman. and here is referred to as the “professional” period.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. 70-71. 1964). 7. these scholars argue plausibly that taqlīd was a                                                                   65 See ʿAynī. 861/1457) comments on Marghīnānī’s formulation of shubha as well. the originally Turkish scholar who became a judge and prison official in Cairo.. which typically refers to adherence to a school’s methodological principles and substantive rulings.D. idem. commented directly on both Marghīnānī and Nasafī’s works and their treatments of shubha. This was called the age of taqlīd. other Ḥanafī jurists follow suit. 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. In that vein. 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. Falsafat al-tashrīʿ. 855/1451). Anderson. again taking Marghīnānī as a starting point often with respect to Nasafī’s reformulation. Islam. 66 67 See Ibn al-Humām. 1966).g.” which led to societal retrogression and stagnation that manifested in the law in a dogged reliance on abridged law manuals (mukhtaṣars)). Joseph Schacht. Ramz al-ḥaqāʾiq. Bināya. (Chicago: University of Chicago Press.In the 9th/15th century. 1976). See. An Introduction to Islamic Law (Oxford: Oxford University Press. London. Maḥmaṣānī. 77-78. e. Law Reform in the Muslim World (London: Athlone Press.N. 1966) (orig. J.”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. 2nd ed. Fatḥ al-qadīr.

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

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

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

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

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

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

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

For him such marriage contracts are defective and thus voidable. Accordingly. As we see here. But they debate whether the contract is per se void (bāṭil) or merely voidable (fāsid).83 but still create at least the semblance of a contract (shubhat al-ʿaqd). Creating mistake through contract Contractual shubha is the third. Qudūrī. 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.3. Ashbāh. where there is a semblance of a valid contract. Tajrīd. averts any ḥadd punishment from the couple. even though Islamic law prohibits incestuous marriages and sexual relations. Jurists unanimously hold that such contracts are defective. 290    . he maintains. that is. a marriage contract between siblings. such as the marriage contract. Ordinarily. He applied this rule even where contracting parties enter into a contract knowing of the material defect. either because the subject of the contract is illegal or the contracting parties are legally ineligible to conclude a marriage contract with one another. in this case exculpating parties from accusations of zinā. Abū Ḥanīfa extended this norm to marriage law in his position that the semblance of a marriage contract should provide protection as well. 84 83 Ibn Nujaym. 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).84 Abū Ḥanīfa applied a similar logic to the case of sexual relations                                                                                                                                                                                                 averting shubha for some Ḥanafīs (as discussed below). this debate has implications for the determination whether shubha exists and thus whether imposition of the ḥadd punishment is warranted. Abū Ḥanīfa held that legal permissions that ordinarily flow from a valid contract create a ḥadd-averting shubha when a contract is materially defective. For example. Qudūrī reasons that the information provides some legal basis for the erroneous view of permissibility just as the contract does. disputed category. 11:5900. Contracts in any system create legal obligations and validate certain status relationships.

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

Dhakhīra. 2:297 (citing the standard formula).86 As we will see. Shāfiʿī jurists begin to expound on the doctrine of shubha in earnest through Abū ʾl-Ḥasan al-Māwardī (d. with expositions of shubha in 5th/11th century Iraq. 463/1071) and subsequent Mālikī jurists elsewhere. 12:50-51. 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). 9:168-71. Bidāyat al-mujtahid. 60 (applying the ḥudūd maxim as a ḥadīth to several cases). 16:324 (detailing a scenario of ḥudūd avoidance from the early period and citing the maxim as a prophetic ḥadīth). Muntaqā. who detailed instances of shubha that mimicked Ḥanafī scenarios but gave the Mālikī rulings. Shihāb al-Dīn Qarāfī (d. Ḥāwī. 292    . 2:1069-73 (listing instances of shubha involving zinā). Qarāfī (d. Similar process of centralizing and elaborating upon the ḥudūd maxim in the Shāfiʿī context began sometime later than in Mālikī law. Their expansive doubt jurisprudence was picked up by the Cordoban jurist Ibn ʿAbd al-Barr (d. see also ibid. 1088-89 (same. Kāfī. for wine-drinking). Ibn ʿAbd al-Barr. e. 450/1058) and Abū Ḥāmid al-Ghazālī (d. Bayān. 1:205. esp. idem. for theft—listing mostly model cases of evidentiary shubha). 684/1285) is the first Mālikī known to pen a major work of legal maxims and further elaborate the categories of Mālikī shubha. 684/1285). 2:604 (folding in the absence of shubha into the meaning of theft). and passim). 250. al-Aḥkām al-sulṭāniyya.87 Ghazālī is the first to delineate three categories of shubha recognized by                                                                   86 See. as discussed in Chapter 3. 2:324 (citing the ḥudūd maxim as a prophetic ḥadīth and instances of its application).. 1079-87 (same. 632 (discussing differences of opinion on what constitutes ḥadd-averting shubha for zinā accusations: ikhtilāfuhum fīmā huwa shubha tudraʾ [bi-hā] ḥadd al-zinā). Ibn Ḥabīb and his colleagues. 232. 175-76. for defamation (qadhf)). 1075-78 (same.The centralization and gradual development of the ḥudūd maxim in Mālikī law began in the early period in Andalusia with Ibn al-Qāsim. For leading Mālikīs of subsequent periods through the rise of their wellknown treatises on legal maxims beginning in the 7th/13th century. 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). see Bājī. Abū Bakr Ibn al-ʿArabī (d. 87 See Māwardī. Aḥkām al-Qurʾān. 207-15. 505/1111).. Ibn Rushd al-Jadd.g. Ibn Rushd al-Ḥafīd. 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. 543/1148).

e. see Shīrāzī (d. and shubha fī ṭarīq al-ibāḥa). there is less terminological diversity in Mālikī categories than in Ḥanafī and Shāfiʿī contexts. e. Muhadhdhab. Rawḍa. Majmūʿ. See. Nawawī. in both strands of developments. Wasīṭ. One of the few (and earliest) to define the categories in the Mālikī context is Qarāfī (d. 915/1508). 476/1083). 7:306-13. Ibn ʿAbd alSalām (d. 758/1357). 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.g. 11:144-50 (citing the ḥudūd maxim as a prophetic ḥadīth. Maqqarī̄ (d. 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. For Shāfiʿī discussions of the ḥudūd maxim and shubha amongst leading jurists during the period leading up to the rise of legal maxims literature. Wansharīsī (d. al-Qaffāl alShāshī. 145). 18:375. The principal Mālikī compilers of legal maxims do not break down the categories of shubha. 684/1285) in his Furūq. The idea that interpretive differences could give rise to ḥaddaverting doubt was new.g. see also idem. 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. in it. the ḥudūd maxim figures prominently. as discussed below. Remarkably. Qawāʿid. idem. though 293    90 89 . shubha fī ʾl-fāʿil. 5:385. Minhāj. 3:206. on p.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. Ḥilyat al-ʿulamāʾ.Shāfiʿī law.89 As we will see. ʿAzīz. idem. 385. he does so with specific reference to the laws of zinā. Mālikīs and Shāfiʿīs added an additional category of shubha to the existing categories known from the Ḥanafī school and from earlier periods. A. Two align loosely with the mainstream Ḥanafī categories of mistake-of-law and mistake-of                                                                  88 Ghazālī. 2:167.. As a result. ʿUdda. 8:7-15. Wajīz. 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. 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.. Rāfiʿī. Developing Mālikī and Shāfiʿī Shubha Mālikīs90 and Shāfiʿīs91 divide shubha into three substantive categories.

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

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

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

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

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

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

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

Neither imposes the duty of absolute diligence to discover the law. according to his overarching theory of the law’s ends that work to avert harm construed as immoral deeds. Interpretive Ambiguity and Legal Pluralism The third category of shubha. he is still eligible for the death penalty in retaliation. Tāj al-Dīn al-Subkī. B. Ibid. Shāfiʿīs recognized that there is ignorance in a more limited sense. 2nd ed. tied as it is to the very methods and structure of the Islamic legal system. His general intent is enough to invoke criminal liability. 1991) 1:381. for he knew that it was impermissible to kill.punishment (due). Accordingly.. ed. is the most complex category.109 Ibn ʿAbd al-Salām would agree.”108 In this case. they adopt an approach that supposes: (1) it is hard to know the law.. which regards as                                                                   108 E. so the ḥudūd maxim would play a role. 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. 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. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad ʿAwaḍ. A central feature of this system is a unique type of legal pluralism. 301    109 . 882. Claimed ignorance here would not be reasonable. if a Muslim murders someone mistakenly thinking that there is no equality of status. al-Ashbāh waʾl-naẓāʾir. 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. (Beirut: Dār al-Kutub al-ʿIlmiyya.g. even if such acts do not violate the technical letter of the law. and (2) there is no legal violation where the law is unclear. interpretive ambiguity. This discussion reveals diversity within schools. 1:382 (this is true even where evidence is subsequently produced. according to one opinion there is still no qiṣāṣ).

They eventually agreed that individually transmitted reports (ḥadīth) provided authoritative indications of prophetic practice. (Cambridge: Islamic Texts Society. as seen in Chapter 3. consensus. rev. 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. Traditionism reflected the view that                                                                   110 See Chapter 1.111 But despite agreeing on the sources in general terms. What if harsh legal consequences attach. that the two primary sources of law are Qurʾān and Sunna (prophetic practice for Sunnīs. one jurist might regard the same act as legal that another regards as illegal. Sunna (normative prophetic and imāmic practice). ed. they are the Qurʾān. 16-116. the 4th/10th and 5th /11th centuries saw the convergence of Sunnī theorists on “traditionism” to varying degrees. Sunna (prophetic practice). and analogical reasoning. it is worth reviewing issues of structure and methodology in Islamic law that are key to understanding their conceptions. For the Shīʿa. The early disputes aside.equally valid all sound legal opinions issued by qualified jurists and adopted by one of Islam’s multiple legal schools. 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. consensus. 228-305. Thus. even where they conflict. Principles of Islamic Jurisprudence. Before detailing how each conceives of interpretive shubha. jurists disagreed sharply over how to interpret the Qurʾān and how to identify Sunna. e. 111 The four principal sources of law for Sunnīs include the Qurʾān.110 Recall. and reason. Bernard Weiss. and accompanying text. 1991). The Search for God’s Law (Salt Lake City: University of Utah. 151-258. note 1. 302    . too. See. See Modarressi. Introduction to Shīʿī Law. 2.. Recall that. prophetic and imāmic practice for Shīʿa).g. so long as the ḥadīth met certain criteria of authenticity. Mohammad Hashim Kamali. 1992). as professional Islamic law developed.

which was an especially thick                                                                   112 This has been described as Shāfiʿī’s triumph. 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 scope of an existing and possibly related ruling is insufficiently clear. al-Qawāʿid al-kubrā. 1. Shāfiʿī had won. Qavāʿid. Arguably. It is clear from the foregoing discussions that there was a considerable amount of diversity of thought dictating different legal conclusions. see Jonathan Brown. This may occur when the law is silent.113 A good example concerns sodomy. Ḥanbal (d. 4:54 (ḥukm kullī-yi chīzī mawrid-i tardīd bāshad). Aḥmad b. or with actual conflicts of texts commanding two contradictory rulings.ḥadīth embodied Sunna as a normative source of law—again. al-Murtaḍā al-Anṣārī. 241/855). fifty years to a century after the other school founders. For an analysis of the move from ḥadīth as supporting bases for other legal methods to canonical sources for law. Ibid. 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. 2007). Dāmād. 303    . Rasāʾil (similarly defining shubha as: dawarān al-amr bayn al-wujūb waʾl-taḥrīm). The committed traditionist orientation is best exemplified for the Sunnīs by the Ḥanbalī school. conflict of texts (taʿāruḍ-i nuṣūṣ)). (absence of requisite text (fiqdān-i naṣṣ). which did not emerge until its founder. 113 In general. though some scholars now question whether Shāfiʿī was in fact responsible for this theory. 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. textual ambiguity covers situations where the law is silent as to the legality of particular acts or where there is a conflict of texts. The Canonization of alBukhārī and Muslim: The Formation and Function of the Sunnī Ḥadīth Canon (Leiden: Brill. Typically. a text is ambiguous when texts of general import engender uncertainty as to whether and how the law covers a new set of facts.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. unclear text (ijmāl-i naṣṣ). See also Ibn ʿAbd al-Salām.

Mufīd. Intiṣār. 2:723-24. there was much disagreement about which texts are authoritative and normative bases for law.. sodomy could not be a ḥadd crime. 304    . should be punished even more harshly).115 Whereas Shāfiʿīs saw clarity. and rational argumentation (that if zinā was forbidden and had a ḥadd punishment. e. Muqniʿa in YF. Wasīṭ. 115 116 See Ghazālī. see Qudūrī.” Journal of Arabic and Islamic Studies 4 (2001-2002). Accordingly for them. See Ibn Nujaym. or alternatively. one strain followed Abū Ḥanīfa’s two students Abū Yūsuf and Shaybānī and sided with Shāfiʿīs in counting male sodomy as a ḥadd crime. 118-28. and their doubt was enough to take sodomy out of the realm of ḥudūd laws. by definition. 5:17.bone of contention between the Ḥanafī and Shāfiʿī schools. there was dispute even amongst Ḥanafīs about the status of the crime. 11:5910-16. “Liwāṭ im Fiqh: Männliche Homosexualität. Justice. where jurists could rarely point to agreed-upon authoritative texts. 23:31. the jurists were focusing on the scope of identifiable. al-Sharīf al-Murtaḍā. Rāfiʿī. 199-214. Islamic law has a problem of sources: in the realm of ḥadīth. But Shāfiʿīs disagreed on the basis that the Qurʾān equated zinā to any gravely immoral act and mandated punishment. see Arno Schmitt. though Ḥanafīs generally found that there was no ḥadd liability for male sodomy. but were silent or needed construction to extend to acts of sodomy. they regarded public male sodomy as immoral and thus punishable at the discretion of the caliph.114 Ḥanafīs argued that the Qurʾān specified a punishment for zinā (fornication) but was silent on sodomy. In addition. 49-110 (defining the prohibition of liwāṭ as one against anal sex. Ṭūsī. male sodomy which was a graver moral offense. al-Baḥr al-rāʾiq. 139-41. Ḥanafīs saw ambiguity. Khaled El-Rouayheb. 2005).g. Nihāya. 1500-1800 (Chicago: University of Chicago Press. Tajrīd. consensus. and even when texts were accepted. 117 Shīʿī law did not face the problem of ambiguous texts in its unequivocal prohibition of zinā. Before Homosexuality in the Arab-Islamic World. it cited a body of ḥadīths. 309. ʿAzīz. in YF.117 The existence of ambiguity grew in the realm of ḥadīths. Rawḍa. Lange. not homosexuality or male sodomy). See. Worth noting is that. agreedupon Qurʾānic texts that clearly forbade zinā. there was disagreement about how jurists ought to resolve conflicts between                                                                   114 For general legal treatments of male sodomy in Islam. For detailed Ḥanafī responses to Shāfiʿī arguments in favor of counting male sodomy as a ḥadd crime. Nawawī. 440. that the word zinā encompassed male-male sexual interactions as well as male-female sex offenses. 23:49-50.116 In this debate. Punishment.

Islamic law falls into two categories—clearly established rules and debatable ones.” EI2. well-established in another school. “nabīdh. for example. Wadāʾiʿ [li-manṣūṣ al-sharāʾiʿ]). the Shāfiʿī recognition is qualified. Ḥāshiya. is enough to give rise to a ḥadd-averting shubha.. Tanbīh. if a Shāfiʿī jurist examines the legal sources relied upon by other jurists for divergent opinions. Everyone in a Muslim society should know.g. see. Thus. 120 119 E. Qarāfī.g. 769/1367).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. See Makkī. Whereas for Mālikīs. Shāfiʿīs flatly prohibit and prosecute consumption of an alcoholic beverage called nabīdh. who lived during the Mamlūk era. 2:133-34 (quoting Ibn Surayj. meaning widespread or common.g. That is. knowledge. al-Qawāʿid al-kubrā. 466-67. Qarāfī understood the first category to be presumed. 7:840. In the earliest moments of the Muslim community. 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. Marghīnānī.119 For them.them. 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. 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.. Furūq. 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”). Hidāya.. see. that the law prohibits sex outside of marriage. Ibn ʿAbd al-Salām. 4:175. as indicated by its label. 2:144 and Fawāʾid albahiyya in Makkī. as occurred in a case                                                                   118 This is a doctrine adopted by the Shāfiʿī and Mālikī schools. in Ibn Abī al-ʿIzz. most Sunnī jurists saw ambiguity in interpretive differences about the law between the legal schools. Islamic Law and the State. 142 (quoting the definition of legal pluralism advanced by thirteenth-century Egyptian jurist Shihāb al-Dīn al-Qarāfī. Ibn al-Naqīb (d. 2:279-80.120 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. See Jackson. not actual. Ḥāshiya. even though Ḥanafīs famously permit it. Heine. e. art. see P. 4:1309. For further discussions of nabīdh. and sources cited therein. mashhūr. Without a single authoritative corpus of ḥadīth or a single code of law. it was possible for new converts to claim that they were unaware of this prohibition. 305    . e. the very fact of juristic disagreement. In this context. ʿUmdat al-sālik.

including Ibn Māzah. holding that ḥudūd punishments applied whenever ḥudūd laws were violated.124 And in this area of clearly established rules. Ibn ʿĀbidīn’s Sharḥ. on the margins. 4:1309. Mughnī. and Ibn ʿĀbidīn. 2006). Mughnī. with Ibn ʿĀbidīn specifying that to impose a ḥadd would contravene the requirements of the ḥudūd maxim. 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. “Debatable rules” refers to the detailed technical rules that have been the subject of juristic debate and comprise most of Islamic law. 193-94.123 Thus. Islamic prohibitions against zinā very quickly became sufficiently widespread that they fell into the category of clearly established rules. Cf. But other prominent Ḥanafīs rejected this view. Ibn Nujaym took a strict-liability approach. see Ibn Nujaym. Paul R. courts generally did not entertain claims of ambiguity. 5:4 (ʿadam ishtihār al-aḥkām). regardless of publication of the law or the offender’s knowledge.121 Some jurists took ʿUmar’s ruling as the basis for a mens rea requirement. ʿUmar. imposed a knowledge requirement for zinā-liability based on ʿUmar’s judgment. For the various positions.122 But more generally. claims of ignorance were never appropriate in cases of sex offenses because all religions and communities had outlawed it. 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. the prohibition against extra-marital sex had been clearly established. 12:345. Qarāfī.during the time of the second caliph. al-Baḥr al-rāʾiq. See also Ibn Qudāma. 5:4 and. which coincided with their understandings of the ḥudūd maxim. 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. Powers. ʿAynī. The implication is that the ability to claim shubha by way of ignorance about zinā prohibitions was limited to the first generations. 12:345. For Ibn al-Humām. 122 Prominent Ḥanafī jurists. 306  123 124   . See Ibn Qudāma. Intent in Islamic Law (Leiden: Brill. as Yemen was on the margins of the community at a time when Islamic law was not widespread. Furūq. “Only astute jurists can                                                                   121 See Ibn Nujaym. The implication is that the man’s lack of awareness was plausible. al-Baḥr al-rāʾiq.

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

as Madelung posits. This is reflected in the editor’s note in Qarāfī’s Furūq.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. Ḥāwī. most Sunnī jurists came to a consensus by the mid2nd/8th century that temporary marriages were unlawful.. said that temporary marriage is indisputably ḥarām. 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. Nevertheless. as was common. and that this was the opinion of all jurists from the generations of the Companions. To do otherwise would be to impose criminal liability where the perpetrator did not have clear notice that his actions were proscribed. in an area where even the jurists could not agree on the clarity of the law. categorically prohibiting it without recognizing the disputed nature of the practice in the early community. Bidāyat al-mujtahid). their Successors. Alternatively. early Shīʿī jurists may have read Ibn ʿAbbās’s additions to be commentary rather than as variants. 4:1307 (citing Ibn Rushd al-Ḥafīd. 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.any prohibition must have occurred through some means beyond the formal constitutional sources. 23-24. saying that the reports that the Prophet prohibited temporary marriage (mutʿa) were transmitted by many routes and thus certain (mutawātir). and indeed. but also that Māwardī.                                                                                                                                                                                                 out by Shīʿī texts. ʿUmar is said to have prohibited the practice after the Prophet’s death. 11:449. or it may be that they found no trouble interpreting the Qurʾān to support a continuing practice of the Prophet. which refer only to the ʿUthmānic reading so far as I can tell. the subsequent outlawing of which by non-Imāms was easily rejected in their theory of law and legal authority. 308    . 129 Contemporary scholars often disregard the early opinions regarding interpretive shubha concerning temporary marriage. and succeeding jurists. ibid. The Shīʿī treatment of mutʿa may reflect a tendency to omit Ibn ʿAbbās as the true source.

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

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

ʿUmar was said to have prohibited the practice after the Prophet’s death.” Ibn Qudāma. and non-Muslims?136 Moreover. judgments prohibiting it. Yet even for Sunnīs who saw ʿUmar’s decisions as normative. Qarāfī argued. 4:1309. the insane. Mughnī. Furūq. This is interpretive shubha for Mālikīs. 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. 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). absolving any temporarily-married person from liability under zinā laws that otherwise do not deem temporary marriage as a legal                                                                   135 See Qarāfī.as in mistake-of-law. Even zinā becomes a second-category offense when interpretive differences obscure the scope of seemingly clear-cut zinā prohibitions. as noted above. Should it not exist all the more so. Mālikīs broadly recognize interpretive differences on issues relating to most criminal laws (murāʿāt al-khilāf). ranging from debates about the elements of the crime and jurisdiction to offender characteristics and culpability. Note that the absence of shubha is built into the definition itself. when even jurists found difficulty in interpreting the law?135 Following this logic. bestiality. 136 Jurists agree only on the most basic definition. other schools permit forms of marriage that Mālikī law does not. the same applies to theft. Temporary marriage constituted one form attested in early Islamic legal history. The various legal schools differ over the precise definition and elements of zinā. 12:340. 311    . and implicitly to defamation and wine-consumption. and necrophilia? Is there extraterritorial liability? Do zinā laws apply to minors. Does it encompass male sodomy. the conflict between texts initially permitting temporary marriage.

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

for the validity of his decision is disputed amongst jurists. Accordingly. 313    . 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. An alternative opinion might reveal itself with the slightest reflection or it could require considerable thought. by definition. Fatāwā). Tuḥfat al-muḥtāj). Likewise. and consequently.other early schools permitted them meant that early scholars—whose views created precedent—must have allowed them. Rather. is not enough to give rise to a ḥadd-averting shubha. Nevertheless. For them. Ashbāh. (see Makkī. the validity of the prayer) or who makes ablution without the intention to do so (as Shāfiʿīs require). recognition of rules that go against the mainstream Shāfiʿī positions requires a firm legal basis that would meet muster according to Shāfiʿī interpretive methods. That is. mere juristic disagreement. 2:144) (citing Ibn Ḥajar al-Haytamī. which are typically discussed as accepted instances of interpretive shubha.141 But Shāfiʿī willingness to recognize other schools’ opinions beyond those established during this early period was limited. recognition is due only to conclusions that rest on logic so strong that they suggest themselves easily to an astute jurist’s mind. 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. if a Shāfiʿī jurist examines the legal sources relied upon by other jurists for divergent opinions. because these acts are permitted in other schools on sound (or at least plausible) legal-interpretive bases. likewise. Ibid. was not the mainstream Shāfiʿī jurist’s immediate conclusion in the first instance). Ḥāshiya. 141 Suyūṭī. such as Ibn Ḥajar al-Haytamī in his Tuḥfa. Shāfiʿīs would apply the principle of interpretive shubha in these cases to avert the ḥadd for zinā. (citing Qaffāl. only well thought-out                                                                                                                                                                                                 but the Shāfiʿī jurist Tāj al-Dīn al-Subkī noted that other scholars. More common are examples of disputed forms of marriage of marriage without a guardian or without witnesses. Shāfiʿī jurist Makkī cautions that it is far from easy to evaluate the strength of a divergent opinion (that. took the opposite view because of the overwhelming disagreement with Dāwūd and his methods. 237. even if well-established in another school.

Makkī.. 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. some jurists apply even more restrictive criteria before making findings of interpretive shubha. One Shāfiʿī judge.. Wadāʾiʿ). Ḥāshiya. which the Qurʾān clearly prohibits.. 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. that this position is well                                                                  142 Suyūṭī. e. ʿUmda.g.g. Mukhtaṣar (Damascus: al-Maktab alIslāmī liʾl-Ṭibāʿa waʾl-Nashr. Ḥāshiya. 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. based on the ḥadīth stating that a drink “that intoxicates in large quantity is prohibited in small quantity: mā askara kathīruh fa-qalīluh ḥarām. Ibn al-Naqīb. Shāfiʿīs will recognize interpretive shubha. 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. see. Ashbāh. 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 (citing Fawāʾid al-bahiyya. 2:241-42 (commenting on the strength of the evidence (madrak) required).143 On this extremely narrow interpretation.144 For Mālikīs. 466-67 (defining the prohibition against drinking to cover any substance that would intoxicate if consumed in large quantity. 2:133-34 (qawiyyan dalīluh). To be sure. Ibn Abī Zayd al-Qayrawānī. 143 Makkī. Consider the drinking of nabīdh. recognized only those divergent conclusions adopted out of dire necessity. quoting Ibn Surayj. 144 See. 142 Going even further. Indeed. the beer-like beverage that Ḥanafīs infamously permitted. Ibn Shurayḥ.” For the rules prohibiting it in other schools. e. not many cases of interpretive shubha are ḥadd-averting. ibid.differences on the basis of strong legal arguments create the kind of ḥadd-averting shubha at issue here. That is. Risāla (Rabat: Wizārat al- 314    . Abū ʾl-Qāsim al-Khiraqī. 238 (sharṭ al-shubha an takūn qawiyyan). the Mālikīs do just that. 1964). 196 (Ḥanbalī).

that is. Shāfiʿīs restrict interpretive shubha to actual ambiguities of legal texts based on their                                                                                                                                                                                                 Awqāf waʾl-Shuʾūn al-Islāmiyya. which Muslim jurists believed were lacking in such cases. the laws of retaliation (qiṣāṣ) would not apply because retaliation laws required equality of status. Ibn Idrīs al-Ḥillī (d.g. 145 146 See above. 20 (not citing the ḥadīth explicitly). and accompanying text. 315    . Qawāʿid. See Mufīd. after acknowledging early precedential rules from other schools of law. if a non-Muslim took revenge against a Muslim who had killed one of his family members. in YF. Shāfiʿīs also part ways with Ḥanafīs on certain issues of homicide. Muqniʿa. 598/1201-2). as they reject extending rules on the basis of analogy. note 106. 23:418. al-ʿAllāma al-Ḥillī. Shīʿī law prohibits it too. 160 (Mālikī).146 Shāfiʿīs rejected this Ḥanafī such that ḥudūd avoidance would not apply regardless of the supposed basis for the rule.145 Uniquely. even if he retaliated with the Ḥanafī rule in mind. and they hold that Ḥanafīs who drink nabīdh are ḥadd-eligible. In sum. See. Shāfiʿī held that the non-Muslim became eligible for the penalty of death.established in the Ḥanafī school suffices to make it an instance of interpretive shubha. note 37 and accompanying text (discussing the case of Zufar that reveals that. and the surviving family members of the non-Muslim victim retaliate by killing the Muslim perpetrator. in YF. Ṭūsī. fuqqāʿ. if a Muslim kills a non-Muslim. also based on a ḥadīth and its harmful health effects. 1415/1995). if a Muslim were to kill a non-Muslim. Nihāya. 23:40. Ordinarily— as noted above. 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. based on the ḥadīth rather than qiyās. They further prohibit a non-intoxicating drink. in YF. there can be no prosecution against the retaliation because the survivors had some legal basis in Ḥanafī law to justify their actions). Sarāʾir.. 3:474. Hidāya. the clarity of the law in the foundational texts leave Ḥanafīs with no reasonable basis for legalizing nabīdh. under Ḥanafī law. Accordingly. Mufīd. See Chapter 1. 2:731. 23:41. But for Shāfiʿīs. 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. Ibn Bābawayh. e.

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. His example places his conception squarely in the realm of the second type of shubha. Shāfiʿīs recognize only the first two types of shubha broadly: mistakeof-law and mistake-of-fact. 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.own interpretive methodology. Shubha as Interpretive Difference Shāfiʿī parallels to the Ḥanafī rebuff of interpretive shubha are perhaps telling. Shāfiʿism developed as a minority school—that is. mistake-of-law in the mind of the layperson. This is perhaps not the best example. it helps jurists of this school interpret the law more determinately and with more precision. 2:279-80 (al-taʿāruḍ bayn adillat al-taḥrīm waʾl-taḥlīl …). Ibn ʿAbd al-Salām. as no legal ambiguity arises except in the mind of the layperson. The limitation to Shāfiʿī rules helps restrict potentially unwieldy claims of shubha by reference to interpretations of other schools. without any indication of preference (tarajjuḥ). Shāfiʿīs further developed their jurisprudence of legal maxims under the Mamlūks. 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. 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. where was a conflict between precedents conferring rights to sexual enjoyment of slavewomen (conceived as property) with texts prohibiting sexual relations without full ownership. as where one text indicates that a certain act is permissible and another that it is impermissible. 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. jurists are agreed that the law prohibits sexual relations with only partial slave-ownership. in essence. By way of example. Qawāʿid. one without official state patronage. C.147 By interpreting interpretive shubha so narrowly then. As the dominant legal system for centuries under ʿAbbāsid rule in its several manifestations.

” Islamic Law and Society 10. Yosef Rapoport. they argued. 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. 2 (2003): 210-28 (questioning Jackson’s analysis).                                                                   148 For classic—though brief—expositions treating the four chief judgeships in the secondary literature. 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. Cf. For a more in-depth treatment commenting on the politics surrounding the institution. 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.” Journal of the American Oriental Society 115 (1995): 52-65 (arguing that the new Mamlūk sulṭān. Nielsen. In such cases. “Legal Diversity in the Age of Taqlīd: The Four Chief qāḍīs under the Mamlūks. Baybars. Shāfiʿī’s were dominant in early Mamlūk Egypt.S. but with a new orientation.representatives of each school were officially recognized by the political authorities with the establishment of four chief judgeships—one chief judgeship for each school. “The Primacy of Domestic Politics: Ibn Bint al-Aʿazz and the Establishment of the Four Chief Judgeships in Mamlūk Egypt. 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). 317    . 663/1265. Jurists of some schools argued in favor of strict liability for certain crimes. J. IV. see Sherman Jackson. Escovitz. where the values at stake were so fundamental. they could severely restrict it.” Journal of the American Oriental Society 102 (1982): 529-31. Their earlier.148 According to Sherman Jackson.H. Notably. see J.” Studia Islamica 60 (1984): 167-76. In that position. they advocated punishment regardless of mistake or lack of notice. more accommodating theories of legal maxims and of doubt did not allow them to eradicate interpretive shubha. that the ḥudūd maxim could not apply. “The Establishment of Four Chief Judgeships in the Mamlūk Empire. “Sultan al-Ẓāhir Baybars and the Appointment of Four Chief Qāḍīs. Fault Lines: Strict Liability & Moral Values Ambiguity did not always produce the benefit of ḥudūd aversion.

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

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

There. And for most jurists. V. this signaled a move not only from traditions to law. as in law manuals. what justified it. even within legal schools. about what constituted shubha. In this professional period. Jurists differed significantly. 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. and where principles of ḥudūd                                                                                                                                                                                                 waʾl-nikāḥ). certain substantive moral values disallowed ḥudūd avoidance—setting clear limits on the doctrine and practice. but from common-law style case-by-case reasoning to principle-based expositions of law. See Ibn Nujaym. Ashbāh. 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. The rationales justifying ḥudūd avoidance and counseling against it in these cases clashed directly. beginning with Abū Ḥanīfa’s two most prominent students.adjudication on the mere basis of the sanctity of private agreements had to fit within rather than override Islamic law’s overarching fundamental values. Abū Yūsuf and Shaybānī. objected. Jurists found the value Abū Ḥanīfa placed on private property insufficiently compelling to trump competing family values. Subsequent Ḥanafīs. the content of this new exposition of law was neither uniform nor absolute. Importantly. Likewise. 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. the ḥudūd maxim often begins the section on criminal law. 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). 320    .

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. 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.avoidance did not apply. 321    . In a similar vein. The next two chapters assess the commitments of other jurists who approached this and other maxims with caution and sometimes outright rejection. 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.

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

” by analogy to the Case of Māʿiz.” If he had fled from the ḥadd to tawba. For Ibn al-Qayyim. “if only you had left him alone. This understanding of legal authority in turn drove their interpretive framework and pushed substantive maxims like the ḥudūd maxim to the sidelines. Ḥanbalī Shubha A. he could have repented and God would have accepted it. II. detractors and reluctant adherents to the ḥudūd maxim arguably aimed to maintain the ideal of judicial subservience to divine law. and the confession would be preferred. they identified textual tools that provided mechanisms for flexibility in the law. He did not regard it as an authentic ḥadīth. when the Prophet said.was by no means absolute. the witnesstestimony and the confession in that scenario would not be entertained simultaneously. but that did not necessarily mean that he saw it to be illegitimate stratagem. These were cleverly called instances of shubha by jurists who accepted the ḥudūd maxim. 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. I argue that they did so based on an early theological view of “God’s rights. 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 323    . this is a “permissible stratagem: ḥīla jāʾiza. but could just as easily be regarded as merely a stratagem to avoid the ḥudūd punishment. 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.3 It was precisely for this reason. Ibn Ḥanbal: Faithful Agent of Mixed Traditions Ibn Ḥanbal had good reason to reject the ḥudūd maxim. Some accepted the maxim outright. it would become the imām’s prerogative to either impose the ḥadd punishments despite having less than the requisite multiple confessions). nor did he agree with practices of ḥudūd avoidance on the basis of status hierarchies.” from which they derived their understanding of juristic discretion and authority (as alluded to in Chapter 2). Quite to the contrary. that Ibn                                                                   3 “Stratagem” (ḥīla) was Ibn al-Qayyim’s label. And where others placed limits on any principle of ḥudūd avoidance. in such cases. that would have been preferred. In terms of epistemic authority. it seems. See the collection of Ibn al-Qayyim’s fiqh writings in Jāmiʿ alfiqh.

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

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

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

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

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

where he does include both shubha and the ḥudūd maxim—though aiming to confine discussions of them to Ḥanbalī doctrine.. 307ff. Stanford J.21 But not so in his Aḥkām al-sulṭāniyya. see Henri 329    23 22 . “Some Considerations on the Sunnī Theory of the Caliphate. “A New Look at al-Aḥkām al-sulṭāniyya. some years later.g. 308: lā yuḥadd).al-ṣaghīr. of the political context surrounding Māwardī and ideas about how it motivated the writing of this work. 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.g. Polk (Boston: Beacon Press. Shaw and William R. Polk (Boston: Beacon Press. most of which Abū Bakr al-Khallāl (d. he made mention of neither the maxim nor shubha. 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.R. 141-50. al-Aḥkām alsulṭāniyya. For the view that Abū Yaʿlā copied Māwardī’s tract and “Ḥanbalized” it. non-liability (e. 1962). See H. a tract on political theory that mirrored (or responded to) a work of the same title written by his famous Shāfiʿī contemporary Māwardī. for theft of dates. see Chapter 5. Abū Yaʿlā largely follows his forebears’ structure and rules and notes areas of their disagreements. representing the two major strands of thought internal to the Ḥanbalī school. 499-523 (listing differences between the two and noting that Māwardī penned the original text). 309. he also adds a few other cases of ḥadd liability vs. For a comprehensive review. For example.A. Competing Texts. Some scholars have posited that Abū Yaʿlā had taken and modified the Aḥkām from Māwardī. The absence of shubha here is in contrast to his discussions in a separate work.. 1962). Shaw and William R. nor for retraction of a confession (p.23 But as                                                                   21 Qāḍī Abū Yaʿlā. etc. Hurvitz. 334/945) had already outlined—both based on well-known ḥadīth and opinions attributed to Ibn Ḥanbal. 311/923) and Khiraqī (d. ibid. Interestingly then. But there is ḥadd liability for witnesses who give false testimony as to zinā (p. Gibb introduced Māwardī’s scholarship to an English speaking audience in the 1960’s. 1983). who had reduced the caliph to a figurehead and enjoyed effective control over the state. “al-Māwardī’s Theory of the Caliphate. 1-15. see Muḥammad ʿAbd al-Qādir Abū Fāris. stealing a muṣḥaf) also based on earlier precedents and ḥadīth. Gibb. 265: wajaba ʾl-ḥadd). 264: saqaṭa ʿanh al-ḥadd). ed. Stanford J. e. al-Qāḍī Abū Yaʿlā al-Farrāʾ wa-kitābuh al-Aḥkām al-sulṭāniyya (Beirut: Muʾassasat al-Risāla. esp. For Māwardī’s use of the ḥudūd maxim in his Aḥkām and elaboration of the principle in his Ḥāwī. 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.” in Studies on the Civilization of Islam. noting that Ibn Ḥanbal indicated both sides: wa-qad awmaʾa Aḥmad ilā ʾlwajhayn). 151-65. Jāmiʿ. (p. he mostly presents the instances of ḥadd liability and non-liability in terms of mandatoriness. Donald Little. he reflects what seems to be a running theme in Ḥanbalism: places where Ibn Ḥanbal himself indicated divergent positions on questions of ḥadd liability.” The Muslim World 64 (January 1974).. ed. Here.22 According on one view. a contemporary who fully adopted and expanded on the ḥudūd maxim at length in his works.” in Studies on the Civilization of Islam.

” Revue des Études Islamiques 36 (1968): 11-92 [repr.”29 Hurvitz is agnostic on which Aḥkām was the original. 38-39. in which each excludes the legal school of the other in his analysis).Nimrod Hurvitz has argued. Ibid. 41. Abū Yaʿlā and Māwardī were up to something else. 5. serving the public interest (maṣlaḥa) became the new overarching standard to bind the community. In their treatments.. 42 (citing the introduction to Māwardī’s Aḥkām). Hurvitz.24 Māwardī’s work devotes only a single chapter to the caliph’s interest. 1968].. noting that some sections draw on similar sources so appear similar while others are quite different.26 No longer able to appeal to earlier notions of centralized caliphal authority. “La Pensée et l’action politiques d’al-Māwardī (364-450/974-1058). Ibid. and arguing that the two works of Aḥkām represented longstanding tensions between juristic traditions of Māwardī and Abū Yaʿlā. 25 26 27 28 29 30 24 Ibid. 28 (questioning full-sale copying..28 In that sense.. 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. Ibid.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.27 Hurvitz also argued that Abū Yaʿlā and Māwardī were both establishment men. Paris: P.30                                                                                                                                                                                                 Laoust. “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.. Ibid. and it otherwise strengthens the positions of the Būyid establishment. Geuthner. 41-42. 42. Ibid. 330    . 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. Competing Texts.

.31 Likely. for Hurvitz.33 The more interesting question is to ask why there are differences.” wherein rulers made policies that formed a sort of raw material from which the jurist-scholar                                                                   31 See ibid. “both consider[ed] the ruling elite’s policies as an important and legitimate source of legal doctrine. 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).. 331    . Ibid.though in his text he seems to favor the idea that Abū Yaʿlā copied Māwardī’s more lengthy text. modified to fit Ḥanbalī doctrine in which the ḥudūd maxim as such was largely foreign to that school during this period. 25 32 33 Ibid.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.. 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. 34 35 36 37 They are called mutakallimūn in Abū Yaʿlā’s Aḥkām. That is. 42. Hurvitz suggests that the culprit is a long-standing dispute between pro-theology. Ibid. Given the near-verbatim language. reflected an “interesting partnership between rulers and scholars. rational-minded Shāfiʿīs like Māwardī34 and anti-theology traditionist Ḥanbalīs like Abū Yaʿlā as to the political leadership of the community. 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. Ibid.”37 This. 43.

He does not. 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. In this context. 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). at the end of the day. Case in point: the ḥudūd maxim. 47. he notes permissions for ḥudūd-avoidance in limited situations—as had Ibn Ḥanbal. he notes that Māwardī includes nine historical accounts that refer to caliphs.. In his discussion of the public jurisdiction over criminal law. Abū Yaʿlā was arguing against Māwardī.. give Abū Yaʿlā’s omissions of Māwardī’s historical anecdotes much weight. 39 In the chapter on maẓālim (extraordinary jurisdiction to address grievances. as Hurvitz himself was aware. 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. and described in Chapter 2). It seems to ignore key differences between the two scholars’ approaches. al-Jāmiʿ. 332    . while Abū Yaʿlā includes none. Khallāl. he was against what had                                                                   38 Ibid.38 This explanation is not entirely satisfactory. commenting that both “integrate historical and contemporary political practice into the legal narrative of Islamic public law” to support his broader conclusions.39 And he carefully avoids attributing to the Prophet reports that he and his Ḥanbalī forebears do not conclude are authentic. Abū Yaʿlā does not cite historical anecdotes beyond the first few generations as authoritative. Accordingly. Ibid. 25. presided over by the caliph).extracted the rules for public law by flexibly choosing policies and elevating them to normativity to fit their own historical circumstances. 45-48. Ibid.. Though both adopt an accommodationist stance toward the establishment. however.

genuine confusion as to the identity of his wife.42 In this way. duriʾa bi-hā ʿanh al-ḥadd. qāla ʾl-Nabī ṣallā ʾllāhu ʿalayh wasallam: idraʾū ʾl-ḥudūd biʾl-shubahāt). To be sure.g. 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. 266 (noting that intercession in a criminal trial is barred and cannot facilitate absolution from ḥudūd-liability (isqāṭ al-ḥadd)). e. Aḥkām. 41 For the ḥudūd maxim as a prophetic ḥadīth in Māwardī’s work. always affirming the Ḥanbalī rule. 254] al-ḥadd). 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. 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. or ignorance that zinā is illegal in the first place. Thus. 265 (noting that Ḥanbalī rule—against that of Abū Ḥanīfa—that if a man has sex with a maḥram. such as defective contract. 265] ḥadīth al-Islam. he mentioned ḥadd-averting shubha. as in Abū Yaʿlā’s Aḥkām. being a recent convert. Abū Yaʿlā. as in Māwardī’s Aḥkām. even if they are married. 263 (defining zinā as sex in the absence of a validating relationship or the semblance (shubha) of one). Aḥkām. 42 See.”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. wherein the latter notes that “the Prophet said: ‘avoid ḥudūd in cases of doubts or ambiguities.. 333    .’”41 Abū Yaʿlā’s section on ḥudūd is replete with such direct references to shubha and oblique references to the ḥudūd maxim. duriʾa bi-hā shubha [sic = ʿanh. 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. for instance. then the ḥadd sanction is to be avoided. 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)). he writes that if a man “claims plausible shubha as an excuse for committing zinā. 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.become by then the widespread idea that the ḥudūd maxim was Prophetic. see his Aḥkām.

Competing Texts. their accommodation of the establishment was not absolute. 334    .                                                                   43 By contrast. in textual precedent of practice. that have a weak verbal-textual pedigree but have been recognized by the Ḥanbalī forebears as rooted. others insisting on egalitarianism. and so argues with respect to the three major traditions (as Hurvitz points out).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. like the ḥudūd maxim. Like his predecessors. in some ways. is rationally minded (believes in qiyās). some privileging the elite. In essence. accepts the opinions of the other Sunnī schools—though not the Ḥanbalī school—as valid if not correct. But if so. he can be said to have been concerned with accommodating the establishment elite. 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. but accepting the practice in limited situations backed by authoritative ḥadīth texts giving rulings as to ḥadd liability on a case-by-case basis. Māwardī cites political anecdotes from other periods.principles emanating from their practices. 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. Still. See Hurvitz. Abū Yaʿlā’s approach echoes Ibn Ḥanbal’s move of rejecting the ḥudūd maxim as a ḥadīth. they grappled with competing traditions from the period they agreed carried the greatest weight of authority—some favoring ḥadd imposition. nonetheless. he views it as acceptable to appeal to doctrines far beyond the text. So. others ḥadd avoidance. and in practice.

The argument between Māwardī and Abū Yaʿlā then was not between Shāfiʿīs and Ḥanbalīs over political leadership. 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. extratraditionist scholars was his way of holding true to his traditionist methodological commitments. 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. 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. 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. They agreed that those in power—even if they achieved it by force—were owed near total obedience. His rejection of these pro-theological. Each side displayed some degree of fidelity to theological and legal orientations. 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. Māwardī was willing to accommodate scholars of his ilk. The reverse is true for Abū Yaʿlā. explains why Māwardī largely excluded Ibn Ḥanbal from discussion of the juristic community in his Aḥkām. This is the 335    . and both writings accommodated the ruling elite in that dynamic. Rather.

Ibn al-Bannāʾ (d.47 The same                                                                   44 See Shāfiʿī. Ibid. that—contrary to Abū Ḥanīfa’s rule—retracted confessions can remove ḥadd liability.methodological explanation. 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. 6:133. Ibn al-Bannāʾ (d. he said. that insane people and minors cannot be ḥadd-eligible. he cited several individual rulings that suggest ḥudūd aversion or mitigation whenever the heightened requirements for proving zinā were not met. the multiple instances of ḥadd aversion. 3:1120 (noting that the Qurʾān requires four witnesses. that ḥadd liability was due after only a single confession. which Hurvitz well outlined..44 Thus. 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. 336    . Muqniʿ. etc. 471/1078-9).45 Taken together. 46 47 45 Ibid. though with a key difference: they had come to regard the ḥudūd maxim as a ḥadīth. which he took to be another authentic tradition favoring ḥudūd avoidance. 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. 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. Shāfiʿī’s position. 3:1120-21 (taghlīban li-isqāṭ [al-ḥudūd]). Umm (1961). Abū Yaʿlā’s successors followed broadly in his footsteps.). There was the accommodationist one as well. Perhaps they were overcome by the consensus amongst scholars of other schools as to its prophetic origins. 3:1120 (idraʾū ʾl-ḥudūd biʾl-shubahāt). that an ill person convicted of a crime warranting a penalty lesser than death can request delayed punishment. * * * Not much later.

Abū ʾlKhaṭṭāb al-Kalwadhānī (d. see Whitman. 5:6 (aw lāmastum al-nisāʾa fa-lam tajidū māʾan fa-tayammamū). 510/1116). part methodological—revolving around how to interpret the word “touch” in a Qurʾānic rule instructing men. 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).applied—even more so—to situations where a convict retracts the confession during sentencing. [to] perform dry ablution [with clean dust]. Reasonable Doubt. if they “touch women and do not find water [to purify themselves in preparation for prayer]. requiring him to redo it. Qurʾān. and it obligates redoing the ablution. 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. 180. 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. the word “touching” means just what it says—touching with the hand. (attributing the opinion that lustful touching breaks wuḍūʾ to mainstream Ḥanbalīs and Mālik. Kalwadhānī.52                                                                   48 Ibn al-Bannāʾ.”49 The question was whether merely touching a woman invalidates a man’s ablution (wuḍūʾ). note 182 and accompanying text. and concluding then that the latter should be even more acceptable than the former). 49 Kalwadhānī (d. 4:43. 50 51 52 Ibid. 1:313 (kināya). 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. 189-202. 116-17. especially with desire. Muqniʿ. Intiṣār. 510/1116). 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. see Chapter 6.48 The Baghdādī scholar and head of the Ḥanafī school during his lifetime. For further discussion in the Shīʿī context. Intiṣār. The uncertainty is part linguistic.”50 For Ḥanbalīs. noting that Abū Ḥanīfa and others hold that mere touching—whether lustful or not—does not break 337    . 1:313-25. or whether the ritually impure act that breaks it is actually having sex.

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

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

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. 1:323 (ḥaqīqat al-ṭahāra innamā tajib ʿan najāsa wa-ʾltiqāʾ ʿuḍwayn ṭāhirayn lā yaḥduthān najāsa). and this simply does not occur through two “pure” body parts touching one another. But in fact. 1:320. without needing to mention it explicitly: touching women—which comes last in the list—is the act that requires the major ablution. Indeed. The interlocutor argued that God has in fact completed the analogy. Qurʾān.66 In the end. Cf. mere touching usually does not come with that kind of desire or those kinds of effects as the Ḥanbalīs are assuming. not simple touching with the hand. in the criminal law context.. but there is no ḥadd liability—in                                                                   64 Ibid.67 Here is where the crux of Kalwadhānī’s textualism comes in. Ibid. 67 66 Ibid. mā yurīdu ʾllāhu li-yajʿala ʿalaykum min ḥarajin wa-lākin yurīdu li-yuṭahhirakum wa-li-yutimma niʿmatahu ʿalaykum laʿallakum tashkurūn). He rejected all of the above arguments based on two interrelated arguments. which we know is occasioned by sex. the two sides agree that if a man lays naked with a woman. 340    .. there is no certainty that even if it does. 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. but there is no proof that they had sex.full sentence by substituting simple ablution for minor impurities and major ablution for full impurities. 65 Kalwadhānī. 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). that it always does so such that the rule should always require ablution with touching regardless of accompanying effects. he said. the bottom line for Kalwadhānī’s opponent was this: purification is only required when there is something that causes actual impurity. 324-25. 323. Intiṣār. featuring the ḥudūd maxim. 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. the act is illegal. First.64 He added a few other arguments centered on prophetic practice65 and on analogical reasoning identifying the likely reason for the rule. 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.

1:319-20 (idraʾū ʾl-ḥudūd biʾl-shubahāt). (fa-ammā ʾl-ḥudūd fa-mabnāhā ʿalā ʾl-darʾ waʾl-isqāṭ). For legal maxims. as Abū Yaʿlā and his forebears had done. including that it is illegal to buy wine because it is the means to drinking it.application of “the Prophet’s statement to ‘avoid ḥudūd sanctions in cases of doubt. Matters of ritual worship. ḥudūd are different. 1:321. like those governing impurity and ablution. in cases of doubt.). we need not look for the operative cause because we do not base the law on presumptive reasons but on text. see also ibid.e. requiring making ablution after sleeping because the latter is a means or has the possibility of triggering an impurity (khurūj al-ḥadath). Ḥanbalism was textualism whose self-image was one of faithful servitude to scripture and sunna. 1:319 (fa-ammā fī masʾalatinā fa-fīh iḥtiyāṭ liʾl-ʿibāda yaghlib). 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. In law. Ibid. Ibid. 69 70 71 72 73 Ibid.. that translated into either a rejection of the ḥudūd maxim as a ḥadīth. 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. (here: taraddud).”68 He added. which is a ḥadd-eligible offense. Accordingly. 315 (al-ḥaml ʿalā dhālik [i. If they accepted the ḥudūd maxim as a ḥadīth. “ḥudūd laws are based on a principle of avoidance and non-liability. are arational. explaining the import of the ḥudūd maxim.72 we adopt the safer path. or                                                                   68 Ibid. so it means that the rule is indeed triggered with touching regardless of the other effects. lāmastum ʿalā ʾl-lams biʾl-yad] aḥwaṭ liʾl-ʿibāda waʾl-bāb [sic = maʾāb?] fī ʾl-ʿibādāt [ilā] ʾl-iḥtiyāṭ). For further elaboration of the precaution principle in the context of Shīʿī law. Ibid. (mentioning other instances of seeming arational rules in ritual and non-ritual areas..” not arousal or sex. etc.. Ibid.70 Instead. and this is his second point..73 This generation of 5th/11th century Ḥanbalī scholars was about defending Islamic law against the discretion-permitting theories of the other law schools. 341    .69 Essentially. see Chapter 6.. The verse says “touching.

ed. Contested Ḥudūd Avoidance It is difficult to say definitively what made Ibn al-Bannāʾ and Kalwadhānī to accept the ḥudūd maxim as a ḥadīth. waʾl-ḥudūd tudraʾ biʾl-shubahāt). as Ibn al-Bannāʾ and Kalwadhānī had done. and were verified from. ʿAbd Allāh b.acceptance of the maxim as a ḥadīth but limitation of the principle. 751/1350) too accepted the ḥudūd maxim (despite his protestations to the contrary. that capitulation was not to last for long. For Ibn Abī al-Qāsim. 2:282. see his alWāḍiḥ fī sharḥ Mukhtaṣar al-Khiraqī. 624/1226). 620/1223) and Ibn Abī al-Qāsim (d. Duhaysh (Beirut: Dār Khiḍr liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ. 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. ibid. see Chapter 1.74 A century later. If they did succumb to the overwhelming trend by their time amongst other schools. 1. accept the ḥudūd maxim. coming down on the side of Abū Yaʿlā-style limited ḥadd aversion. Ibn Mufliḥ (d. ʿAbd al-Malik b. 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). (a similar use of the maxim for the bar against slave testimony). 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. 2000). both commenting on Khiraqī’s law manual. 4:413 (discussing ḥadd-averting shubha with reference to the Case of Māʿiz and applying the notion to retracted confessions: … li-anna rujūʿah shubha. the ḥadīth literature. All three limited the principle to textual instances of ḥudūd avoidance from earlier cases that appeared in. 416 (citing the maxim to explain why ḥadd liability for zinā requires male testimony based on the argument that Qurʾān. Ibn Qudāma (d. as discussed in Chapter 1). Ibn al-Qayyim (d. though they did not regard it as a ḥadīth. 342    .

Most likely. ʿAbd al-Muḥsin al-Turkī (Beirut: Muʾassasat alRisāla.L. 10:58-59 (similar. 319/930).g. on the margins of Ibn Mufliḥ. Beirut: Dār al-Qalam. Zarkashī (d. Ibn alLaḥḥām. Qawāʿid. Manṣūr b. See. see Abdul Hakim I. 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. this orientation calls on                                                                   75 Ibn Mufliḥ (d. is an overarching traditionist-textualist mentality governing their school and thus the tradition from which they write. 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. 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).Matroudi. 1:29 (citing the ḥudūd maxim. these jurists give a slight nod to the concept. and noting that most scholars say that minority cancels liability and that the very [juristic] dispute creates a ḥadd-averting shubha).76 or acceptance of the maxim but extremely constrained application of it as had Ibn al-Qayyim.” in Studies on Islam. Ibn al-Mundhir (d. 61.. the stripped down shubha jurisprudence is deliberate. ed. Yūnus al-Buhūtī (d. M. Ijmāʿ. Sharḥ.77 The only unifying feature linking the two approaches. Al. see also ibid. A major exception is the area of juristic difference (ikhtilāf). Ibn Qudāma in his Mughnī. For general overviews of Ḥanbalism. al-Fiqh al-Ḥanbalī al-muyassar bi-adillatih wataṭbīqātih al-muʿāṣira (Damascus. 772/1370). but the other forms have no clear basis for khilāf because they contradict no naṣṣ. For a recent study. 77 76 In large part. and passim (limited mention of ḥadd-averting and non-ḥaddaverting shubha). 1981): 215-73. saying that the only genuine khilāf regards mutʿa—because it was an early juristic dispute from the period of the salaf and their successors. ed. 1997). ʿAbd Allāh b. 97. and other collections: idraʾū ʾlḥudūd biʾl-shubahāt mā ʾstaṭaʿtum) and 6:94 (li-anna ʾl-ḥudūd tudraʾ biʾl-shubhat ḥasab al-istiṭāʿa)..78 All things being equal. The Ḥanbalī School of Law and Ibn Taymiyyah: 343    78 . a point worth considering since Ibn Qudāma. 98 and passim (multiple rulings of no ḥadd liability because of shubha. Sulaymān alMardāwī (d. al-Dār al-Shāmiyya. 1051/1641). on the margins of Ibn Mufliḥ. see Wahba al-Zuḥaylī. Ibn Qundus. Kitāb al-Furūʿ. see also 95. See also ʿAlī b. [1960?]). George Makdisi. 2003). 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. Cf. Hilāl Muṣayliḥī Muṣṭafā Hilāl (Riyadh: Maktabat al-Naṣr al-Ḥadītha. Taṣḥīḥ al-Furūʿ. E.g.. Kashshāf al-qināʿ ʿan matn al-Iqnāʿ. including Ibn Abī al-Qāsim in his Wāḍiḥ. 10:57 (noting that the absence of zinā is required for ḥadd liability for zinā: wa-yushtaraṭ intifāʾ al-shubha). and Kalwadhānī in his Intiṣār. 885/1480). Kitāb alFurūʿ. Oxford: Oxford University Press. ed. 10:59. 96. such that it is a dispute established by text (thabata bi-naṣṣ).shubha. Ḥāshiya.75 And so it continued in the 8th/14th century and after. they limit shubha (some hardly mentioning it at all) and ḥudūd avoidance to explicit cases of precedents from ḥadīth rulings. 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). Swarz (New York. e. 99 (holding that there is no consensus: lam yathbut fīh ijmāʿ). if there is one. 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. 763/1361). 6:296. Kitāb al-Furūʿ. Cf. or ḥadd liability because of the absence of shubha (li-ʿadam al-shubha). Bayhaqī. “Hanbalite Islam.

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

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). I refer to uncertainties in substantive law and procedural standards from the perspectives of both the accused and the jurist. which include the absence of shubha as a requisite element for ḥadd liability.concise law manual. Bashīr. Ibn Qudāma categorized as ḥadd-averting shubha mistakes of law. the wide—though incorrect— assumption that any type of ownership validates sexual relations may create a genuine confusion that the rule applies to full. In all such cases. and indeed seek to uncover some type of shubha. 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. e. sex with a jointly owned slavewoman or a father’s taking of his son’s property. Nuʿmān b. especially with cases proved by confessions). which the judge should aim to remove. Thus. appear in their definitions of zinā. concerning voluntariness and criminal intent. he also accorded it as wide a scope as they did. In saying that he applied it to every category of ambiguity. Ibn Qudāma. 12:347-48.g. the ḥadd is only due for drinking an intoxicant if the person knows that the drink—in large quantities—is intoxicating. There. which stipulates that 345    .80 and doubts about whether the criminal elements themselves were present. Coercion creates a ḥadd-averting shubha. that “you and your property belong to your father: anta wa-māluka li-abīk.. for example. 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. See ibid. In the second case. he or she is not ḥadd eligible. 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. there is the Prophet’s well known saying. the expanded Shīʿī version below in Chapter 6]. who found no ḥadd liability in such case and attributed the verdict to following a prophetic precedent. See ibid. In the first case. Ibn Qudāma not only asserted that the maxim applied in every category to which non-Ḥanbalī proponents of the maxim applied it. ibid. says Ibn Qudāma.g. 82 81 See ibid. with only certain limitations. there is ḥadd-averting shubha: alḥadd alladhī yandariʾu biʾl-shubahāt). 12:354 (noting that to punishable zinā must be absent any shubha. 12:345.” 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.82 as does ignorance of the law.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.. The typical indication of jurists’ folding of shubha into the substantive elements. 80 E.81 Another part of this latter inquiry goes to issues of mens rea.or part-ownership.. Part of that inquiry involves the definitional elements of the crime broadly... 12:345-46.83 He also finds shubha in certain types of                                                                   79 See.. Mughnī.

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

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

In such cases. he comments that the maxim encourages judges to pursue paths against ḥadd liability as a technical legal matter. and surmising that the Ḥanbalī position—Khiraqī is silent on this issue—may well support ḥadd-aversion for such confessions as well. Ibn Qudāma prefers the first opinion because of the ḥudūd maxim.. Ibn Qudāma entertains the notion that the ḥudūd maxim applies even when it diverges from Khiraqī’s rule.. 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. and (3) there is ḥadd liability only if the accused has a reputation of lying and/or stealing. 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. In some discussions. though not for accusations proved with external evidence (li-anna al-ḥadd lā yajib maʿa ʾl-shubha waʾl-ishāra lā tantafī maʿahā ʾl-shubahāt)). most jurists agreed that there was no ḥadd liability. according to Khiraqī. just as in cases of zinā. 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. But Ibn Qudāma says that confession to theft is taken at face value and the proper rule.attributed to Ibn Ḥanbal himself: (1) there is no ḥadd liability. 89 Ibid. 12:359 (noting the Ḥanafī rule that a mute person’s confession through signlanguage constitutes ḥadd-averting shubha as does witness testimony against him. See also ibid. Ibid. is that the slave is ḥadd                                                                  88 Ibid.88 In doing so. he adds a comment about notification and specialization of the law.89 Moreover. 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. 12:472 (li-anna ʾl-ḥudūd tudraʾ biʾl-shubahāt). (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. based on an application of the ḥudūd maxim to both. 348    90 .

in dicta. and when the criminal intent is there. 12:396. Thus.92 Ibn Qudāma does not apply the maxim without limitation. if someone says zanaʾta. Ibn                                                                   91 Ibid. as Khiraqī (as Shāfiʿī) had held. 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). the rule is based on intention. which could indeed be read as shubha.91 Here. Here.” this is ḥadd-eligible defamation (qadhf) if meant in the second sense. he perhaps opens the way for later Ḥanbalīs to adopt this opinion on the basis of the ḥudūd maxim. By and large. which means “you committed fornication or adultery. though he does not explicitly adopt it himself. 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.eligible. Ibn Qudāma did not apply it. For example. Yet. section 3..” rather than zanayta. 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. 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.. where application of the ḥudūd maxim would present direct conflicts with Khiraqī’s opinion. which literally means “you scaled [a mountain]. 92 93 94 Ibid. See Chapter 4. See ibid.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. 349    .

the maxim was so pervasive and important that he regarded it as a matter of consensus.96 In this same vein. See also ibid. 624/1226) accepted the maxim too.. 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). 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). 12:341-42. 96 Ibid.                                                                   95 See ibid. but the contract here is per se void and in fact is never solemnized because the parties. as the overwhelming majority view) by the end of the 3rd/9th century. 12:2444 (qāla Ibn al-Mundhir ajmaʿa kullu man naḥfuẓ ʿanh min ahl al-ʿilm anna ʾl-ḥudūd tudraʾ biʾlshubahāt). 350    . in sum. 132 (wa-ajmaʿū ʿalā darʾ al-ḥadd biʾl-shubahāt). applied the maxim broadly. Zayd Āl Maḥmūd). defective contracts can only create shubha about legality if the contract has some valid. he does not regard it as a ḥadīth. basis in the first place. It pervaded every section of his criminal law jurisprudence. are never able to enter into such a contract. and was the key governing principle of that area of law—subject only to certain limitations.. See Ibn al-Mundhir.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. like Ibn Qudāma. The major exception to that was Ibn Taymiyya. who left his own imprint on the law. Ijmāʿ. 319/930). particularly between parties. 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. And most subsequent jurists followed suit. As noted above. Notably. even if erroneous. al-Ijmāʿ. See Ibn al-Mundhir (d. if brother and sister. 319/930) made this statement in his work of some 765 matters on which jurists had reached consensus (defined. implicitly.. particularly when the perpetrator knows of the prohibition. In those limitations. pointing to Ibn al-Mundhir’s statement to that effect three centuries before his time. not as a prophetic ḥadīth but as a guiding principle of criminal law. contemporary Ḥanbalī jurist Ibn Abī al-Qāsim (d. Regardless. 113 (listing a citation to the maxim along with commentary by the editor ʿAbd Allāh b. 95 Ibn Qudāma. Ibn al-Mundhir (d.

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

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

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

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

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

24.109 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). thus. It is virtually axiomatic for most schools that slaves receive half of the punishment due free men and women for all crimes. 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]. Ibid. Examples of his strict textualism in criminal law include cases involving defamation and slave punishment. As does Ibn Ḥazm. 154-58 (against ijtihād). male and female. 356  109 110   . and doctrines. For his life. unmarried slaves. for him.                                                                                                                                                                                                 (istidlāl)). See Shaṭṭī. 1984). waʾl-sāriqu waʾl-sāriqatu fa-ʾqṭaʿū aydiyahumā … (Qurʾān. Risāla fī ʾl-madhhab al-Imām Dāwūd al-Ẓāhirī (collecting masāʾil—opinions on legal issues collected from various works and attributed to Dāwūd b. are to get the full punishment of one hundred lashes due for fornication and are to receive the full sanction for defamation. 108 Qurʾān.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.. ʿAlī). 25.. 4:25 ([F]a-idhā uḥṣinna fa-in atayna bi-fāḥishatin fa-ʿalayhinna niṣfu mā ʿalā ʾl-muḥṣanāti min alʿadhāb … . 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. including texts outlining criminal law rules and proceedings. there is no minimum value of the stolen item to trigger the punishment because the text specifies none. theft is theft. see ʿĀrif Khalīl Muḥammad Abū ʿĪd. chaste women. then she is to receive half of the punishment for the free.interpretations of law. works.). Note that this is in sharp contrast to Shāfiʿī’s view in the section on ḥudūd laws in his Umm. Imām Dāwūd al-Ẓāhirī wa-atharuh fī ʾl-fiqh al-Islāmī (Kuwait: Dār al-Arqam. 25 (Dāwūd: li-ʿumūm al-āya [i.e.”108 Dāwūd reads this verse narrowly to apply only to married slavewomen. 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.

then confession. judge according to his own private knowledge if it illuminates what actually happened.113 Dāwūd roots all of this in a general sort of prophetic precedent that incorporates notions of culture and convention. 112 113 114 Ibid.114 During the Prophet’s time. aimed to establish with certainty whether a crime has taken place and punishing the perpetrator accordingly. amwāl. 26 (specifying that the rule applies to dimāʾ.. 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. Muslim convert of one of his nemeses. Rather. had stolen money from her husband. As we will see below. To that end.Dāwūd maintains that whenever the crime is established. Ibid. there was some question about whether a woman named Hind. furūj. much less to disingenuous claims of shubha. 357    . the governing principle is not fairness or giving the opportunity for the accused to mount a defense. and he need not rely on or even request evidence where it is unilluminating. he also holds that—in contrast to most Sunnī schools—a judge not only can. qiṣāṣ. then outside evidence (bayyina)”—typically witness testimony. the criminal trial is truth-seeking. 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. the ḥadd applies even if someone confesses to committing zinā but then retracts the confession. The Prophet ruled that she had taken from him an amount to suffice her and                                                                   111 Ibid. 24.112 Thus. but must.111 In matters of criminal law.. for him. and ḥudūd).

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

ijtihād trot out to justify their judgments on the basis of personal whims and preferences. and it is located in the text. ambiguity does exist. 359    . “Ibn Ḥazm’s Literalism. . The truth is that which God.” Ibid. consider this counterfactual example: “If two people were to perform ijtihād and arrive at different opinions. 307-48.” In such cases. there is one right answer. the truth would lie in two contradictory answers at the same time. Most famous is the ḥadīth of Muʿādh b. were we to appeal to judges to decide matters according to “their own whims … [each would] judge by his fancy. Nubdha.. but it is limited. According to this doctrine. A Textualist Theory of Ambiguity and the Principle of Precaution Two centuries later. (giving a ruling) opposite that determined by the fancy of his companion. Ibn Ḥazm elaborated on Dāwūd’s textualist approach. Ẓāhirīs rejects the ḥadīth with criticism as to both authenticity and content: the chain is unreliable and the content contrary to the overarching. Jabal (reporting that the Prophet affirmed Muʿādh’s plan to exercise ijtihād when sent as a judge in Yemen). one must not restrict the word to one meaning. enjoined upon us... despite their contradiction. “all possible meanings are valid. defined as words that have “more than a single meaning.”122 Someone could also be                                                                   119 Ibn Dāwūd. For Ibn Ḥazm. 121 Ibid. the Glorious and Almighty. in Stewart. 122 See Ibn Ḥazm. Wuṣūl. To prove it. He adds that. 120 Ibid. 157. 157-58.119 In sum. oft-emphasized textual principle of adherence to the text. The most common form of ambiguityproper is textual ambiguity.” 7-40. in Sabra. 155.” We must therefore appeal to the Qurʾān as a judge. provided they do not result in a logical absurdity..121 B. the two rulings would be correct. 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.

he says. Muḥallā. 125 Or there could be doubt as to whether the evidence is sufficient to establish the crime. not in so many words. For more of Ibn Ḥazm’s arguments against taqlīd.                                                                   123 See Ibn Ḥazm.124 Or the person might doubt whether a reddish liquid in front of them is wine or not. In sum.. 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. discussed below). 360  127   . In that case. both of these types correspond to shubha ḥukmiyya discussed in other schools. Nubdha. as we will see in the next chapter.uncertain about the law because they are simply ignorant of the appropriate ruling (jahl). Ibn Ḥazm. 793ff. 124 See idem. or it is not. Muḥallā. of taking the safer way. 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.123 In such cases. 12:186-88 (detailing the case of a man and woman arrested for zinā who claimed to be married. 126 This stance is similar to that of the Astarābādian Shīʿī textualists. Ibn Ḥazm was most concerned with first authenticating and then applying what he deemed to be the dictates of the text. Muḥallā. Iḥkām.126 The Qurʾān and Sunna are the only valid sources for law.g. See Chapter 6. lest they fall into the clearly prohibited. in his ḥudūd jurisprudence. Ibn Ḥazm.” It is either that the crime is established. Notably. But he does not view this as “doubt” or “ambiguity. see idem. they are required to ascertain the rule themselves or else ask a learned scholar for their opinion. 20. 18. and these sources specify that ḥudūd are obligatory whenever the evidence establishes a crime. the ḥadīth requires the person to avoid the act altogether if they cannot resolve the ambiguity. out of precaution. See. He too is advising a principle of precaution (iḥtiyāṭ). they are to ask someone knowledgeable what the liquid is before drinking it. 797ff. elaborating on the principles and presumptions of legality and innocence. e. 12:60.127 Accordingly.125 In all these situations of doubt. 8:252. Ibn Ḥazm is essentially saying.

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

133 Ibn Ḥazm rejects the idea that the Prophet canceled or considered canceling ḥadd liability after the crime was established. See Chapter 2. Recall that in that case. Muḥallā.130 None of these texts make mention of shubha. each with different narrations and isnāds. Moreover. 131 132 133 134 Ibid. who brought him to the Prophet for adjudication and then tried to intercede to avert the punishment after sentencing. Ibn Ḥazm. calling most munqaṭiʿ—coming from ʿAṭāʾ.132 In his review of Ṣafwān’s Case. or there was no proof for the alleged crime in court. 9. 12:54-57 (listing several versions.134 Instead. 8:252. other                                                                   130 Ibn Ḥazm. he points out. states that ḥudūd imposition is obligatory when someone has confessed to a crime or when it has otherwise been established with certainty.maintained.. a man stole a cloak from Ṣafwān. none has an unbroken chain of reliable transmission connecting back to the supposed events in question. and Ibn Shihāb [al-Zuhrī]—none of whom met Ṣafwān. ʿAmr b. and noting that the others include transmitters who are unreliable (ḍaʿīf) or unknown). ʿIkrima. Dīnār. 362    . Appendix. which is irrelevant to the question of ḥadd liability. Case no. 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. contradicts the bar on intercession to change the verdict after the fact.131 On the question of intercession or attempting to alter the bases for ḥadd liability after guilt has been established. 12:256. it does not come from records that can be authenticated. either the crime happened and was proved in a court. the report. Of the several versions recorded in ḥadīth collections. Ibid. in which case there was ḥadd liability. Muḥallā. he first attacks the authenticity of the report. in which case there was no ḥadd liability.

As there is no text or consensus to the contrary. for Ibn Ḥazm.ḥadīths make clear that no intercession can void ḥadd liability once a crime has been adjudicated in court.. Ibid. 138 In sum. “without issuing a fatwā on the matter. the traditions regarding ḥudūd imposition and avoidance are questionable whenever they suggest avoiding ḥudūd enforcement when a matter has been brought before the courts. 363    . 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. Ḥadīths to the contrary are inauthentic and should not be relied upon for the ḥudūd maxim proponents’ permissive take on ḥudūd avoidance. then his advice is to bring the matter to court. Ibn Ḥazm examines one of the “overlook” sayings (taʿāfaw). (an yaʿfā ʿanh).136 Ibn Ḥazm’s preferred course.” is to overlook minor misdemeanors. and concludes that only the version with the ḥudūd exception is authentic. (mubāḥ). In that vein. Ibn Ḥazm says.137 But if an act is truly criminal and causes harm to an individual victim. are clear that ḥudūd punishment is mandatory whenever a crime is committed and proved in court.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). Ibid. The texts. Even the authentic ḥadīths on which ḥudūd maxim-proponents rely to shore up their positions contain no evidence that the                                                                   135 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. 136 137 138 Ibid.

139 Rather. Ibid. Consider the issue of whether defaming slavewomen is a criminal act subject to ḥudūd sanctions. 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. as usual.presence of shubha ever drove the Prophet’s decisions. Ibn ʿUmar. the great jurist of Medina in the 1st/7th century. 364    . These jurists take the view that a slave’s low station in life means that they have no personal honor (ḥurma) to be violated. otherwise. attempting to root his arguments in the text of the Qurʾān and traditions. the                                                                   139 Ibid. 2. he concluded. a special category of slavewoman.. 12:232. 12:256. 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. A series of ḥadīths deal with a related question—men who defame slavewomen who are mothers to their children (umm walad). 12:230-33..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. Most jurists hold that it is not. 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. no ḥadd liability applies. was once asked about a man who defamed another man’s umm walad. and he ruled that the one committing defamation was liable for the ḥadd sanction. 140 141 Ibid.140 Ibn Ḥazm takes the opposite view.

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

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

the two parties added the sin                                                                   150 Ibn Ḥazm. 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. This policy also encourages fornicators to have sex in public by simply paying a woman a silver coin (dirham). and placing obstacles in the way of legal sex by marriage.”151 it is legalizing prohibited sex by prostitution. Ibid.Ibn Ḥazm’s response is to point out the incoherence and immorality of Abū Ḥanīfa’s position that.”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. 367    . 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. Muḥallā. 12:198 (fa-hādhā huwa ʾl-istikhfāf ḥaqqan). (a-lā inna hādhā huwa ʾl-taṭrīq ilā ʾl-zinā). Ibn Ḥazm says (not discussing the issue of coercion-as-excuse that usually arises here). especially as Abū Ḥanīfa requires a minimum of ten silver coins (dirhams) as dowry for a valid marriage. not less so. with the addition of money into the equation. In essence. their crime was more serious than zinā alone. Instead. Ibn Ḥazm complains that as Abū Ḥanīfa is selecting and rejecting Companion opinions to suit his own whims. 151 152 Ibid. because it too often merely results in following the whims of individual judges rather than the dictates of the law through the text. in his view. both parties deserved the ḥadd for zinā. Ibn Ḥazm exclaims.152 Anyone who follows Abū Ḥanīfa in this erroneous opinion contradicts both the Qurʾān and the Sunna. Such people also adopt exactly the type of destructive taqlīd that he cautions against in general. and “this makes a mockery [of the law]. If anything.

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

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

. further investigation beyond the mere claim is perhaps warranted.158 In addition. For instance. 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. that it should be regarded as an authoritative and binding text (naṣṣ).160 Only in certain exceptional cases should a couple in this type of scenario be asked to produce evidence. their claims that the women were wives or slavewomen belong to the accompanying man was accepted. 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. Ibid. as only “truth and certainty” provide valid bases for legal decisions. their claim should be accepted. and no one asks them for evidence to prove the validity of their associations. And                                                                   158 Ibid. 370    . His rule then is that whenever a couple is found together claiming to be married. This consensus is so universal. 12:187. particularly if the two are foreigners or unknown to a particular community.. Namely. 159 160 Ibid.decide that there is no ḥadd liability. If found together. and no one demanded that they produce evidence to prove it. (gharībayn). 12:188 (jamīʿ ahl al-Islam wa-jamīʿ ahl al-arḍ). during the time of the Prophet. Ibn Ḥazm argues. including free as well as slave-women and men. 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. if the couple is known in the community not to be married. This should be nothing surprising. people continuously travel with their families.

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

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

If the Prophet did not utter the maxim. If ḥudūd punishments were to be avoided—as the foundational texts certainly suggested they should be at times—it should be based. Ẓāhirīs were more purely in the camp of rejecting it.IV. not with introducing their own views about the contours and concept of shubha through exercising discretion. 373    . Ḥanbalīs spanned the spectrum from almost wholesale acceptance to rejection of the maxim. and other defects to full criminal culpability tilted the balance toward ḥudūd avoidance. Yet to the extent that they rejected the maxim. not on maxims but on the texts of tradition. both sides found alternative mechanisms for ḥudūd