In a recent book, Harvard law professor Intisar Rabb discusses what she calls “the criterion of doubt » in Muslim law, according to which jurists are supposed to avoid criminal punishment in cases of doubt. Rabb recalls that this is a central concept in Muslim law, yet too often ignored today.
In Doubt in Islamic LawIntisar Rabb underlines the central role played by doubt in the evolution of Muslim law. Rabb emphasizes more precisely what she calls the “ criterion of doubt “, according to which Muslim jurists are supposed to “ avoid any criminal conviction in case of doubt » (p. 4). It traces the history of this criterion, and shows how it was used to avoid heavy sentences. Doubt is therefore a central aspect of Muslim law too often ignored in current debates, where the latter is reduced to a rigid set of substantial legal decisions. According to Rabb, “ the most ardent defenders of Muslim law (today) demonstrate a clear lack of knowledge about its historical development, particularly with regard to definitions in context, functions and uses of doubt » (p. 321).
This nuanced work admirably retraces a millennium of Muslim criminal law, from stories of the life of Mohammed to VIIe century to the expansion of the Ottoman and Safavid empires in XVIe century. In his analysis of the procedural use of Muslim law, Rabb shows how many jurists envisaged the latter’s practical application. According to her, Muslim jurists particularly wanted to avoid the heavy sentences apparently stipulated by the penal code. It was precisely this severity which led jurists to question the application of certain measures, in cases where the offense did not seem to justify too heavy a sentence. Rabb speaks of a “ criminal escape » available to lawyers seeking to “ alleviate their own moral apprehensions about the application of unjust sentences » (p. 59). It was once again the severity of the rules that made their application so difficult. Thus the criterion of doubt was first a judicial practice, before being inscribed in the foundations of law, to finally become common practice among Muslim jurists. The criterion of doubt was originally based on accounts of the judicial practice of the Prophet and the early Muslim community. Once included in the texts, we began to talk about the criterion of doubt ; this text ended up becoming authoritative among jurists, who from then on used it in their decisions as a general principle.
Doubt and problems with the letter of the law
Muslim jurists claim that Muslim law is literal and has its origins in the Quran and Hadith. It is said that the ḥudūd (punishments set by God, singular ḥadd) are explicitly prescribed in the Quran. But many people dispute the exact origin of these laws ; likewise, the number and scope of these laws are far from unanimous (p. 34). Given the severity of the penalties prescribed in this framework, judges were reluctant to apply them, and then invoked doubt to exonerate the accused. The argument of circumstantial doubt allowed jurists to exonerate the guilty party, thereby avoiding the application of penalties. ḥudūd. For jurists, doubt therefore served to increase the burden of proof, but also to avoid applying a sentence in cases where it could not clearly be established that it was a crime. ḥudūd. The non-application of these penalties if the crime is proven, as well as the application of these penalties if the crime does not fall under divine law, would constitute a violation of divine law. Just as circumstantial doubt served to not apply the sentence when the identity of the culprit remained uncertain, doubt concerning the law and its interpretation could also invalidate sentences. ḥudūd required. In the context of doubt about the law, jurists exonerated the accused who did not know that their action was illegal ; this was a relatively common situation in the pluralistic legal environment of medieval Muslim law. Doubt about interpretations of the law could arise at the level of jurists, when different valid interpretations of a legal text could give rise to different court decisions.
Rabb gives the example of “ Māʾiz case “, at the time of the Prophet Muhammad. Māʾiz was a Muslim convert guilty of adultery, who confessed his crime to Muhammad ; the latter, however, refused to condemn Māʾiz for adultery, despite his multiple confessions. During Māʾiz’s fourth confession, Muhammad asked him if he was of sound mind and if he had “ simply gave a kiss, winked or glanced at ‘another woman’ » instead of actually committing adultery (p. 25). When Māʾiz confirmed that he had committed adultery in the true sense of the term, Muhammad judged him guilty without imposing any punishment. The prophet later learned that the villagers had stoned Māʾiz. Very disappointed, Mahomet exclaimed that “ they should have let Māʾiz go » (p. 26). The story of Māʾiz is one of the first examples of the use of doubt in order to avoid the application of penalties ḥudūd. Many jurists saw the fact that Muhammad refused to condemn Māʾiz as an indication of how they should proceed in turn. Despite Māʾiz’s confession, Muhammad did not condemn him, then, after four confessions, he tried to cast doubt on his guilt thanks to elements allowing him to be exonerated. Muhammad’s dismay at the news of Māʾiz’s stoning thus only confirmed his opposition to the punishment imposed by the inhabitants of Mecca. If the majority of jurists considered that this text encouraged people to avoid penalties ḥudūda minority saw it as the strict application of the required punishment despite Muhammad’s personal desire not to punish Māʾiz.
Doubt in all its forms
Rabb shows that doubt appears in reports of old hearings where a judge decided not to apply theḥaddor to only apply it in the event of irrefutable proof. In the “ Māʾiz case “, for example, Mohamet never explicitly mentioned doubt, but it was easy for jurists inclined to avoid the application of these penalties to see it as the use of doubt. In this case, as in other cases of the same era, the judges supported the idea that private morality and out-of-court conflict resolution took precedence over public legal action. The population was not supposed to go to court for minor cases, if it was possible to resolve them privately. The repentance of the guilty party could thus replace the judge’s decision.
Early legal authorities invoked doubt and stories involving doubt to discuss the application of laws ḥudūd. We could find in the texts the two imperatives ; jurists claiming rigorous literalism in their application of the law could nevertheless refer to texts (stories, case law, contracts, etc.) where doubt remained, to avoid having to apply the penalties ḥudūd. Different schools of law achieved their ends in different ways, but even those who claimed to rigorously enforce sentences ḥudūd often managed to establish a doubt allowing the culprit to be exonerated during his trial, so as to avoid applying the severe penalty incurred. As Muslim law evolved, the criterion of doubt became a founding text attributed to Mohammed, as well as an official maxim of law. This attribution authorized an increasingly frequent use of the criterion of doubt, as well as the development of a jurisprudence of doubt. Rabb gives numerous examples of the types of doubt accepted and the cases to which they could be applied ; it is in any case clear that the use of doubt in order to avoid penalties ḥudūd intensified very clearly from XIe At XVIe centuries.
Against doubt
Even if Rabb demonstrates that the “ jurisprudence of doubt » prevailed among Muslim jurists, there nonetheless remained a minority tendency opposed to the use of doubt in order to avoid the application of the penalties incurred. This came in part from strict literalism and a belief that Muslim law always had a single correct answer to every legal question. For the majority of jurists, there was more than one correct answer for a given situation, particularly because of the divergent interpretations of the Quran and Hadith. But those who were not of this opinion also seemed less inclined to adopt a jurisprudence of doubt.
Moreover, while doubt could help avoid imposing harsh penalties, it also risked being used to the advantage of elites. Rabb shows that although the maxim of doubt was used to reverse this trend, the maxim was nevertheless used for corrupt purposes by the elite, which included lawyers. Rabb also discusses the maxim of indulgence towards the elite, which pushed judges to turn a blind eye to offenses committed by this section of society. It was a maxim which was current at the same time as the criterion of doubt, and it was only with an exception in the case of sentences ḥudūd that the maxim of indulgence towards the elite ends up being recorded, remembered and disseminated. This was because the criterion of doubt was established by reinforcing the idea that no one could escape ḥudūd punishments, not even members of the elite.
Rabb shows that a minority of jurists, however, persisted in opposing the criterion of doubt. This was particularly the case of Zāhirism, a literalist school of law which practiced IXe ande centuries in Iraq, then in XIe century in Muslim Spain. A similar trend was noted among the Hanbalis in IXe ande centuries, even if the practice of avoidance remained in the majority even after the evolution of school XIIe century ; in fact, it had to adapt to pluralist empires, and coexist with other more pragmatic schools. The fact remains that these opponents of doubt underlined the points of contradiction of the criterion: since doubt was never applied uniformly, it necessarily implied inconsistencies and legal uncertainties. ; moreover, it often favored individuals with high social capital. Rabb also identifies a similar opposition between traditionalists and rationalists among Shiite jurists in the XVe And XVIe centuries.
The author clearly shows that Muslim jurists were keen not only to resolve legal conflicts according to the rules, but also to be just in the broad sense of the term, that is to say, to find a punishment commensurate with the crime, nor more nor less. Rabb presents Muslim law as a system where jurists aspire to leniency and understanding. It is therefore a very different portrait from the one currently painted of an inflexible and immutable system, handing out sentences each more severe than the other. This is a very important work for researchers and students of Muslim law, which also provides an essential historical background for understanding the interactions between democracy, Muslim law and modernity in the Middle East today.
Translated from English by Émilie L’Hôte, with the support of the Florence Gould Foundation.