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Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb Jul 2010

Islamic Legal Maxims As Substantive Canons Of Construction: Ḥudūd-Avoidance In Cases Of Doubt, Intisar A. Rabb

Boston College Law School Faculty Papers

Legal maxims reflect settled principles of law to which jurists appeal when confronting new legal cases. One such maxim of Islamic criminal law stipulates that judges are to avoid imposing ḥudūd and other sanctions when beset by doubts as to the scope of the law or the sufficiency of the evidence (idra’ū ʾl-ḥudūd biʾl-shubahāt): the “ḥudūd maxim.” Jurists of all periods reference this maxim widely. But whereas developed juristic works attribute it to Muḥammad in the form of a prophetic report (ḥadīth), early jurists do not. Instead, they cite the maxim as an anonymous saying of nonspecific provenance in ...