The Islamic rule of lenity: judicial discretion and legal canons.

• Author: Rabb, Intisar A.

ABSTRACT

This Article explores an area of close parallel between legal doctrines in the contexts of Islamic law and American legal theory. In criminal law, both traditions espouse a type of "rule of lenity"--that curious common law rule that instructs judges not to impose criminal sanctions in cases of doubt. The rule is curious because criminal law is a peremptory expression of legislative will. However, the rule of lenity would seem to encourage courts to disregard one of the most fundamental principles of Islamic and American legislation and adjudication: judicial deference to legislative supremacy. In the Islamic context, such a rule would be even more curious, allowing Muslim judges to disregard a deference rule even more entrenched than the American one: a divine legislative supremacy to which judicial deference should be absolute. Yet, there is an "Islamic rule of lenity" that pervades Islamic criminal law. This Article examines the operation of and justifications for the lenity rule in the American and Islamic contexts against the backdrop of theories of law and legislative supremacy that underlie both. In both contexts, the lenity rule acts serves to expand the operation of judicial discretion. But whereas the use of American lenity is fraught and limited, Islamic lenity is relatively uncontroversial and expansive. With the Islamic rule of lenity, we see both stronger legislative supremacy doctrines and more assertions (albeit hidden) of judicial authority to legislate. An examination of the role of lenity in Islamic law with respect to American law explains differences in the scope and exercise of judicial discretion in each legal system. It can also lead us to reconsider common public law theories that characterize rules of deference to doctrines of legislative supremacy and nondelegation as a constraint on judicial discretion.

TABLE OF CONTENTS I. INTRODUCTION II. AMERICAN LENITY AS A RULE OF STRUCTURE A. Lenity as Nondelegation B. Lenity as a Uniquely American Rule of Structure? C. American Exceptionalism in Lenity III. LEGISLATIVE SUPREMACY AND ISLAMIC CRIMINAL LAW A. Structures of Islamic Law and Governance B. Islamic Theories of Governance and Criminal Law C. Hudud Crimes and Punishments IV. THE "ISLAMIC RULE OF LENITY": EQUITABLE EXCEPTIONS TO MANDATORY SANCTIONS A. Equity Rationales 1. A Theological Theory of Hudud Laws: Rules of Moral Obligation 2. A Legal Theory of Hudud Laws: Crimes as Public-Moral Offenses 3. Giving Primacy to Private over Public, Individual over God B. Fairness Rationales 1. A Broad Theory of Doubt: Legal Pluralism and Interpretive Ambiguity 2. Mistake of Law or Ignorance Can Be an Excuse 3. Mistake of Fact Can also Be an Excuse ...... C. Fault Lines: Strict Liability and Public-Moral Values 1. Consensus Cases of Strict Liability 2. Against Contracting Ambiguity 3. Expressing Values: Structure and Substance V. CONCLUSION I. INTRODUCTION

With new questions surrounding Islamic law in American and global contexts comes an urgent need to understand shari'a, particularly Islamic criminal law, where the stakes are high and its landscape appears ruggedly harsh. In foreign constitutional contexts, Islamic law has reemerged globally with over twenty-six countries adopting constitutions with a clause declaring Islamic law to be a source of state law. (1) Issues of Islamic law--in particular, punishments for adultery, apostasy, and blasphemy--frequently appear in U.S. newspapers with important implications for American and international law and policy. Such issues have even found a way into American electoral politics, as presidential candidates speak against the "threat of a shari'a-takeover" of American courts, (2) and several state legislatures have considered bills seeking to "ban shari'a." (3)

In earlier American legal history, judicial depictions of Islamic law have featured a system rife with either caprice or cruelty. In terms of caprice, U.S. Supreme Court portraits have typically followed from the famous account of Max Weber, (4) describing a traditional qadi (judge) under a tree, whimsically dispensing justice. (5)

As for cruelty, another common view imagines Islamic law to be a religious code that adherents perceive as descended from on high, expressing the will of an angry and intolerant God intent on amputating hands and executing apostates. (6) In the first picture, the law is wholly unknown outside of the qadi's own mind, and in the second, it is crystal clear and relentlessly harsh.

Existing scholarship in comparative law and public law theory typically offers no better way to understand the legal interpretative process in Islamic law than the seductively simple depictions of the Weberian qadi or his draconian counterpart. The critical insight missing is an account that reveals the workings of Islamic law as it functioned historically, especially in the high-stakes field of criminal law. (7) Focusing on that arena, it is worth directing attention to the underappreciated area of legal canons like lenity, which turn out to be central to interpretive processes in both Islamic and American-common law legal systems and to closely reflect the public law structural considerations in each. Historically, through the use of certain legal canons--judge-made principles of legal interpretation common to many legal traditions--Muslim jurists developed a highly sophisticated and internally regulated method for adjusting shari'a to changing social contexts in a way that reflected the politico-legal institutional architecture and core substantive values of their societies and times. The medieval Muslim jurists' process of appealing to these legal canons was comparable, I argue, to analogous phenomena at common law. The aim of this Article is to provide a historical and comparative account of the legal and social logic of interpretation of criminal law in American and Islamic contexts. This account of legal processes in criminal law can usefully inform our understanding of the judicial power and separation of powers concerns in comparative public law theory.

For this purpose, I trace the function of a criminal law canon akin to the common law "rule of lenity," a principle of narrow construction for ambiguous penal statutes. (8) The American rule directs judges not to impose criminal sanctions whenever they have doubts about the applicability of the law to a set of facts at hand. (9) In early Islamic contexts, judges invoked a similar principle, the "hudud maxim," which also directs courts not to apply Islam's fixed criminal sanctions (hudud) in cases of doubt. (10) Examined together, it becomes clear that judges deployed legal canons to translate "legislation" to on-the-ground decisions in both contexts, and that canons played similar roles to differing effects in the theory and applications of law in each tradition.

For comparative purposes, a central aim has been to investigate the role canons play in legal interpretative processes and what that reflects about the scope of adjudicative choice and judicial power in regimes that have strong notions of legislative supremacy. The historical and judicial records provide evidence that canons like lenity often reflect not only constitutional structural norms, but also core values in each system. (11) The point is not to suggest any perfect parallel or agreement on the content of the public values expressed by these constitutional texts, but to indicate how judges deploy legal canons like lenity to uphold core values of their respective legal systems. While there are certainly notable divergences between the modern Anglo-American common law contexts and the premodern Islamic one, the sources show a surprising degree of overlap in applications of lenity within the confines of the ideals of legislative supremacy and other constitutional commitments. This insight can provide a useful starting point for further studies as to how American legal scholars might better understand how separation of powers concerns relate to constitutional and statutory interpretation decisions.

My argument proceeds in three parts. Part II lays out the typical justifications for the American rule of lenity as a principle of constitutional structure. Once a doctrine of judicial discretion, prominent American scholars and jurists have come to view lenity as the "new nondelegation doctrine,"--one embodiment of the principle cautioning courts to defer to legislative supremacy. While other justifications exist, this structural view of lenity has become dominant amongst the most ardent proponents of lenity both in the courtroom and in the classroom. Part III turns to explore structural aspects of classical Islamic law that often produce an even higher premium on legislative supremacy for the criminal law than the American context. Part IV queries how the hudud maxim (the "Islamic rule of lenity") operated against that structural backdrop. It contrasts structural arguments with equitable ones to show ways in which the maxim largely reflected the substantive moral commitments of the Islamic legal system as Muslim jurists understood them to exist in Islam's fundamental or "constitutional" legal texts. Muslim jurists' lenity jurisprudence displays their emphasis on ideals of equity and fairness above rigid definitions of legislative supremacy, though--to be sure--there were limits to how far they would emphasize equitable above textual principles when they saw a threat to sensitive social or moral values. Appeals to equity and fairness through lenity principles reveal the extent to which judges in each system understand the extent of adjudicative choice with respect to distinctive structural features and value commitments.

2. AMERICAN LENITY AS A RULE OF STRUCTURE

   The rule of lenity has become the latest, greatest expression of the dual doctrine of legislative supremacy and nondelegation--the latter being the American rule that legislatures are to make the...