This special episode of Borderlines features Islamic legal studies and comparative and foreign law innovator Professor Intisar Rabb, talking about her leading research on shared methods of interpretation for textualists across different systems. The podcast builds upon ideas raised at the 2022 Irvine Tragen Lecture on Comparative Law at UC Berkeley School of Law.
Intisar A. Rabb is a Professor of Law & History and the faculty director of the Program in Islamic Law at Harvard Law School. She has published widely on Islamic law in historical and modern contexts, including the book Doubt in Islamic Law (Cambridge University Press 2015) and numerous articles on Islamic constitutionalism, legal canons, and the history of the Qur’an text. She has conducted research in Egypt, Iran, Syria, and elsewhere. In 2015, Professor Rabb and co-partners launched SHARIAsource – an online portal designed to provide universal access to Islamic law and history resources and galvanize research using AI tools.
In Episode Eight of Borderlines, listeners will learn about the history and resurgent use of legal canons – principles of interpretation that judges derive from common law and use when resolving issues unclear from the text alone – including their ancient role in Islamic law and modern application at the U.S. Supreme Court. Shared similar legal canons threading across systems with like linguistic features, known as metacanons, are broken down. Dialogue covers how statutory interpretation connects to civil and criminal legal systems, the dubious term “civilized nations” in international law, and battling stereotypes of Islamic law with new scholarly resources and coded data.
Borderlines from Berkeley Law is a podcast about global problems in a world fragmented by national borders. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law. In each episode of Borderlines, Professor Linos invites experts to discuss cutting edge issues in international law.
Episode Transcript
Katerina Linos (00:03):
Welcome to Borderlines. I’m your host, Berkeley professor Katerina Linos. With me today is Harvard professor Intisar Rabb. Professor Rabb is professor of law, professor of history, and also director of the Institute for Islamic Law at Harvard. She’s perhaps best known for her monograph, Doubt in Islamic Law. Here at Berkeley, she just gave the annual Irving Tragen Lecture on her new project, Metacanons. Join us today to learn more about the canons of interpretations that judges share in very diverse judicial systems, including in Islamic and in American law.
Katerina Linos (00:44):
Intisar, in your work, you compare Islamic law to American law. Can you start us off with some definitions? What are some examples of these two systems that you call in some ways maximally different?
Intisar Rabb (01:00):
I was speaking to some of the law and history students at Berkeley, and they had a similar question because they’re taking this comparative law course where they’re trying to figure out the philosophy of law. Can we really compare two very different systems? What are the big picture contours of those legal systems? But I think we all think we know what American law is, we have an idea in mind, but then when we start getting into specifics, I think we need to modify it. I teach criminal law, for example. One of the things that I emphasize to students in the direction of defining what that law is, is to say, “Look, we have an American jurisdiction where there’s some 53 plus criminal law jurisdictions of 50 states, the federal government, the territories, and more.” And you could be subject to any one of those jurisdictions or a set of them. If you’re in Native American territory, that could be one set of laws that you could be subject to if you commit a crime.
Intisar Rabb (02:07):
Say that territory is in Berkeley’s campus, you could have the campus police on your back. You could have the California State police prosecute you, and/or you might be guilty of some federal crime. That may be a long-winded way of saying that American law has to do with the jurisdiction or set of overlapping jurisdictions that you’re in and what laws are in effect there. And this is kind of backing into a broader definition of law that I think is a suspect definition of law in comparative law terms, where there is state-backed coercive force to ensure that you follow the law as part of that definition of law. Maybe that’s true for criminal law; I question whether it’s true for many other areas of law.
Intisar Rabb (03:02):
So those are some of the jurisdictional practical features. And then there are the structural constitutional features of a legal system. We’re a constitutional democracy, when we have these constitutional defined and separate three branches, plus the administrative state, all of those makeup features of our legal system. And the final thing is interpretation of who resolves disputes and debates about what the law is, what is the popular understanding of law, what’s the popular consciousness about law. I think that all of those things go into making up what the law is, whether it’s American law or Islamic. If I’m going to summarize, I think it’s jurisdictional enforceable elements. I think it’s structural constitutional values elements. And I think it’s consciousness about or interpretation and resolution of debates about what the law is.
Intisar Rabb (04:01):
The Islamic law context is a lot more diffuse because I’m using the label Islamic law to refer to common norms of structural and enforcement, jurisdictional, or interpretational elements of law that really span 1,400 years of history and a fifth of the globe’s population at this point, places that stretch from the United States — talk about overlapping jurisdictions, particularly where a Muslim American thinks themselves bound by say, ritual laws, how to fast during Ramadan, as well as American public or private laws — so it stretches from the United States to the Middle East, to Southeast Asia, to South Asia and China. It’s really a broad ranging concept that has to do with those three elements and the rule of recognition that H.L.A. Hart advanced: what do people recognize and what do states recognize as the law.
Katerina Linos (05:12):
Can I ask you to talk about what you’ve found that is shared in Islamic law and American law? You study these canons. And to me, it’s fascinating how you can connect the very old to the very new, the concept of a meme to the concept of a canon and to specific principles, from the Ottoman era, from the Mamluk era to modern principles. What are some ways in which these two maximally different systems actually come to the same conclusion?
Intisar Rabb (05:45):
It’s all about interpretation. I think of law as composed of these three areas of structures, of jurisdiction and enforcement or recognition, and interpretation, but it’s really at that point of interpretation that I think all the action is and the room for comparison is. Looking at legal canons or legal maxims of these principles or rules of thumb that judges often use, we find remarkable similarity, but we also may find that there is a similar origin point for a lot of them. In American law, we like to use the Latin phrases, like nulla poena sine lege, there is no punishment without a clearly stated law, or expressio unius for some of the textural canons. And those come from Roman law in the late antique period that made their way into civil law and into our common law system. Lots of folks have done studies on this.
Intisar Rabb (06:49):
One of my favorites is the work by Jim Whitman on reasonable doubt in American law and its European and English origins. So that’s an example of this long trajectory of a doubt principle. I studied something similar in Islamic law, and found that there’s a doubt principle that’s very similar but more expansive than the one that I think Jim Whitman explains really convincingly had to be narrowed to questions of fact, in the American law context. In the Islamic law context, you don’t have a legislature to clarify things. You don’t have an ongoing court system across all these jurisdictions and periods of dynasties and time that I talked about. So the canon itself has to do a lot more work. But query: did it come from the same place originally? It may have. There are reasons to think that some of the same Roman law maxims that made their way into European and English, and thus Anglo-American, common law, were at play and had a path to translation into Islamic law. And I mean that literally and legally.
Intisar Rabb (08:07):
There’s a 8th century translation movement of Greek into Arabic of a lot of the canon from the Western world into the Islamic world. I actually don’t think the doubt canon has Roman law origin in this context, but they’re identifiable family law rules that do, like a paternity canon. You may have heard an old common law rule that the child belongs to the marriage bed. It gets pretty clear that it came from Roman law into Islamic law, but it was taken up and kind of Islamized by the jurists and incorporated or adopted into Islamic law. These features of both actual origins that are similar or borrowings, and regardless of origins or borrowings, similarities. . . And that’s actually where my attention focus is. I’m not as interested in looking at common origin points, I’m more interested in looking at similarities of interpretive rules, especially in terms of textual canons or how language works. It offers this rich area for comparison because you can find these shared features. You come up with some idea, what I’m calling these metacanons, these universal canons or features of how language just works universally.
Katerina Linos (09:34):
I wanted to ask you about your earlier book about doubt and doubt in the context of a murder that seems to have a very clear perpetrator, and yet that’s not right at the end. How does doubt work in Islamic law and how is that similar or different to how it works in the American criminal tradition?
Intisar Rabb (09:59):
That’s a really great question, because especially with the failures of the criminal law system that we see today in America and with what we have long regarded as harsh justice in the Islamic context, especially the most popularized grizzly punishments, there arises this big question. I mean, how could you do this? What if you’re not certain that this is the right punishment? Both of those things together actually really launched me into looking at what is doubt, what is doubt in an area where it really, really matters, where there are life and death consequences, where freedom is at stake.
Intisar Rabb (10:41):
As I investigated the definition and origins of doubt and applications of doubt in Islamic law, I found that it manifested as this concept that one can never really know what happened in any particular context, much less in a criminal law context or a scene of homicide. Before you’re going to punish someone, especially with the ultimate punishment, which Islamic law outlines for homicide that is capital punishment, one needs to be really sure except surety or certainty doesn’t exist. So you find these anecdotes reading, not the straight-up, treatise-like law books, but reading in and around those books, reading about legal canons and how judges actually applied their conception of criminal law, you find that doubt plays a really big role.
Intisar Rabb (11:46):
So there is this story of the butcher that I tell at the beginning of my book, on Doubt in Islamic Law, that apparently had gone to relieve himself in some back alley. He came across a dead body. While he was there, the patrolmen in the area, now we’re talking about the 8th century Arabia, they came and arrested him and accused him of murder. It seemed pretty clear, but it was only circumstantial evidence. No one had actually witnessed it. But the man thought that the circumstantial evidence was so strong that he couldn’t possibly deny it and be believed, so he confessed to it and said, “Fine, sure, I did it.” But in fact, the actual perpetrator, seeing all that unfold, couldn’t take it and ended up himself confessing, “No, no, no. I actually did it. And then I fled and let the blame be pinned on the butcher.”
Intisar Rabb (12:44):
Remarkably, the doubt canon that says avoid criminal punishments in cases of doubt meant that the judge had to let both people go because now there was this fundamental doubt as to who actually perpetrated the crime. You have the circumstantial evidence on the one hand, some conflicting confessions, no eyewitnesses, and maybe reasons that people are confessing that have nothing to do with reality, especially as in the case of the butcher. This story is told and preserved in Islamic legal texts from the 8th century until today to underscore this procedural point and moral point. Procedurally, you need to have airtight evidence. You rarely have that. So you can’t apply criminal punishments whenever you don’t. And morally, it’s not just to execute someone where there’s even a scintilla of doubt as there was in this case, as arose from the procedural uncertainty.
Intisar Rabb (13:51):
The concept of doubt through this legal canon ended up having a really outsized way of shaping Islamic criminal law. Unfortunately, I think that modern state actors who tried to reintroduce so-called Islamic criminal law after the colonial period of the 20th century in recent years, they started looking at all the texts that just laid out the criminal laws and the harsh punishments that accompanied them, but none of the procedures and the interpretive strategies where the legal canons and the protections for defendants come in. And that really overwhelmed the substance of the law from the law books. They had this impoverished notion of what Islamic criminal law was and wanted to apply all text, no procedure, no legal canons. The popular conception and unfortunate incidents of harsh applications of criminal law is really a perversion of the historical applications and concepts. It all has to do with not paying attention to interpretation. Frankly, I think the same thing in the American context, that a lot has to do with how we actually police and what class of people we’re more likely to give harsh sentences to, and that sort of thing. So interpretation does a lot.
Katerina Linos (15:20):
I want to ask you about your book and its impact on conservative states and leaders who had not perhaps had the sources you were able to access and interpret. I know it had a big impact in academic thought, but the ultimate dream of any academic is that your book will really change something on the ground and move a debate that seemed to be immovable. Have you gotten any feedback that people read your book and started opening other sources, started thinking about procedures differently?
Intisar Rabb (16:00):
Yes and no. One notable thing is that, in Iran, they actually changed their criminal law code to include the doubt canon. It’s not that I made it up or it didn’t exist, but there was some measure to which the conversation about what is the role of interpretive norms, principles, and procedures that goes along with the law on the books that we need to be attending to. I think they realized, since the 1979 revolution that put in the current Islamic regime in Iran, that things were not working. One could imagine that, “Well, it’s divine law. It should never change,” but something needed to change because it was leading to a lot of patently unjust results. They ended up delving more into the interpretive Islamic legal tradition and ended up inserting a lot more procedural protections for defendants in a new criminal law code and an accompanying criminal procedure code that came out a year later.
Intisar Rabb (17:11):
It doesn’t solve everything, but I think it’s a positive development. There’s also an international law connection where there was some confluence of human rights activists agitating against the human rights abuses that were apparent in applications of criminal law in Iran, outsized punishments, unjust imprisonments. But, I think those arguments only really took once it was translated into a local, what I call an internal, critique of the legal system. And there were internal norms that external human rights actors helped push local actors to paying attention, to figuring out how to push those internal critique levers to agitate and get accepted, meaningful change in the criminal law system.
Intisar Rabb (18:09):
Paul Robinson of the University of Pennsylvania, professor there, whiz at all things codification and criminal law, was asked to guide the change and adoption of an Islamic law code in the Maldives. He led a group of students, some of whom had some knowledge of Islamic law, to doing that. And he was really focused on how do you best organize a new criminal law code, but they said it needed to be connected to our Islamic legal tradition. So they actually put the doubt canon in the commentary to that code with reference to my work. So that one at least is not a spurious correlation.
Katerina Linos (18:54):
Wow. Amazing.
Intisar Rabb (18:55):
Thank you. It’s one step at a time. A lot happens with respect to what judges actually do and how the law enforcement system works. But at least if you have the tools in place, it gives a fighting chance to get some justice.
Katerina Linos (19:11):
What you said about translating external pressures into an internal language is a core idea in international law and international organizations, that we set up these international organizations, and we are missionaries, and all the top posts are held by expats, and locals only hold the local jobs. And low and behold, we don’t succeed in our conversion project to human rights, or whatever the ideology is, because we have not managed translation in the most basic sense. Being able to work from within is amazing.
Intisar Rabb (19:50):
Yeah. On that note, I’m encouraged by the International Criminal Court, the Office of the Prosecutor, which is Karim Khan. They appointed me this year as a special advisor for Islamic law. The prosecutor just gave a speech at a big international law conference in Florence that was looking at the intersection of religion and violence and hate speech. And he was really pushing this notion that we need to better translate the work of the court into language and into tools that local communities, including religious communities, can recognize and accept and implement. That really resonates with me. And I’m glad to be able to work with him in that direction on matters or jurisdictions that have something to do with Islamic law.
Katerina Linos (20:45):
That’s fantastic, given the backlash that the International Criminal Court has faced, and the idea that they’re aware that their actions are not being well received and that translation can be helpful in making sure that norms that are universal, norms against impunity do in fact make sense and don’t seem entirely foreign and Western. What will you be working on in particular? Can you speak to that?
Intisar Rabb (21:13):
We don’t have particular or limited docket laid out, but where these issues come up, in my case, for the Islamic world on issues of Islamic law, where there needs to be this translation, I will be working on those things. There are some special advisors with expertise in other areas, some of which also are really dedicated to looking at local problems and norms and doing similar translation exercises. This is a new position, actually. I think you’re right, that there’s a new prosecutor, perhaps we can say there’s a new court then, in so much as it recognizes the need for this type of approach to international criminal law. And so I’m really, along with the others, looking forward to working on this.
Katerina Linos (22:04):
The reason I was so excited by your work, or one of the reasons, has to do with the effort in international law to find that which is universal in law, to find gap filling principles we call general principles of law shared among civilized nations. That’s the technical term. And then to find custom. The specific principles you spoke about, I have not seen in treatises and other lists of international custom or general principles. For example, when we’re teaching general principles to a class, we say every legal system needs principles like good faith, like judges must be impartial. Every legal system needs to have some idea of contributory liability. If multiple parties contributed to a harm, harm should be allocated appropriately. Every legal system needs to have some analog to the statute of limitations, that you can’t bring a claim long after the witnesses have passed away.
Katerina Linos (23:08):
Two of the legal principles that you mentioned, the rule of lenity and the canon that the ordinary meaning should be given to words, absent some other indications, I have not seen in international law. And I’m wondering if you could speak about them, what you find in Islamic sources, whether you see them in other legal systems. You mentioned American law, Roman law. Should these be general principles of law shared in all legal systems?
Intisar Rabb (23:40):
I think yes. And I think there are two things I’d say, an answer to that question overall. One is in delineating the general principles of law for international law. For some reason, Islamic law, though it’s one of the world’s major legal traditions, is thin in that process. I think we could come up with the reasons. There haven’t been a lot of perhaps Western-originating but Islamic-law-familiar experts of Islamic law until the past 10, 20, 30 years to have that conversation, to know the sources, et cetera. I think there’s a “civilizational” bias about what counts. We say the law of civilized nations, of course, there’s that whole once and former and maybe future debate in the Supreme Court about, can we cite comparative law or foreign law jurisdictions? And of course it goes without saying that we mean “like the civilized nations, like Europe,” when we even set up that debate. And the list could go on.
Intisar Rabb (24:53):
Islamic law, especially given how old and widespread it is — some 1,400 years and much of the globe that claim adherence to it in some form — it’s maybe the best kept secret, the most understudied area of law that has a lot of rich traditions that I think could well be a font for an expanded set of what these universal principles that we’re so keen on finding an international law are. And the idea that it’s perhaps maximally different from what’s coded as those civilized nations, can actually bolster the argument for saying that if these principles, like the rule of lenity or the canon of ordinary meaning, if they exist in systems as far apart as Islamic law, American law, current English law, et cetera, then it’s safe to say that there’s some universal meta property to it that nations of the world, no matter how they’re coded, can agree on and do agree on historically. I think it just takes doing the work and having eyes open to that possibility.
Katerina Linos (26:13):
I’m really intrigued by this because I think lawyers are doing the work but in the wrong way. We have, for example, the International Committee for the Red Crescent and the Red Cross that are saying, “We want to establish really clear principles shared among all countries about weapons that are prohibited, be it exploding weapons, be it targeting civilians, be it cluster bombs.” And all they really need to do is say, even Hitler hesitated when using chemical weapons in European theaters, and suddenly everyone’s on board. I wonder whether there’s work to be done, which is in fact, a shortcut. You don’t have to establish what 193 countries did if you find that Roman law, Islamic law, internet law, and some other maximally divergent source all believe that ordinary meaning is the place to start.
Katerina Linos (27:09):
This conversation about custom and general principles could really be enriched with your research on just the substance of Islamic law and Islamic law canons, I would say. But the orthodox position in international law is that every Islamic state is civilized, other than maybe ISIS. We have some conversations about the caliphate in its most modern form as being an uncivilized state. But every other state counts in the modern definition of “civilized” and should form part of these Supreme Court decisions, and has in fact formed part on occasion, as in conversations about the juvenile death penalty and juvenile life without parole.
Intisar Rabb (27:53):
I think not. Roper v. Simmons, where this debate comes up, the set of laws that they’re looking at has to be England and Europe only. The late Justice Scalia and Justice Breyer have published remarks of a live debate that they had on this. That’s where I get this notion that it almost goes without saying that, “No, we really mean. . .” I’m not saying that’s the international law concept of civilized nations. I’m saying it’s the terms of the American comparative law debate on citation of Supreme Court decisions that excludes anything but Europe and England. I think, in particular, our Supreme Court is certainly not open to looking easily beyond our borders. And even when we do, it’s to cognate “civilizations.” And Justice Scalia says, this is because we share history and the same principles. I think he’s ignorant about what the rest of the world does, and maybe he was just speaking about what he does know.
Katerina Linos (29:00):
I want to agree with you in part and disagree in part. As a practical matter, you’re right. We have very limited knowledge and very biased knowledge. And we know well those that are closest to us, then there’s this big informational intellectual gap. And that’s one of the reasons why your codification project is so valuable. Where I want to disagree is to say that the methodology we’re using, which is looking to those who are closest to us and just trying to expand the number of countries we study from 10 to 20 to 30 to 40, will never get us to where we want to go fast enough. And it would be much faster to go straight to Islamic law.
Katerina Linos (29:48):
Let me elaborate on this idea. What the ICRC does is, it says, “Look, we have studied the laws of 50 countries, 60 countries, 67 countries, and every additional country increases the number of countries.” And it’s one more research assistant. There are courts that are more systematic than ours. So the European Court of Human Rights, the European Court of Justice, they do have systematic translation and they look in this limited region. They do really great regional comparative work, but that is time consuming. Instead, to the extent we can use some techniques in social sciences, like case selection and sampling, and it doesn’t matter whether you have 10 or a thousand or a million, as long as you have the right cases, as long as you’ve thought about this idea of two systems as being maximally different or five systems as being maximally different, you can study five rather than 190. And that’s why I’m so inspired by your project.
Katerina Linos (30:49):
A methodology point: I am really bothered that most of comparative law has taken the tradition of most similar systems, where you say the reason I’m comparing the US to the UK is that they’re very similar, because no systems are similar enough to really have the rigor of the experimental method where you’re trying to hold all things constant but this one variable which will be randomly assigned. We always have legal systems that overlap with history, that overlap with politics. It’s just really, really hard to have everything constant. And we have not used the other dominant method, going back to John Stuart Mill, of most different systems to find universal canons. And we could, with less effort. Not that it’s not a huge effort to construct the database you’re constructing, but it holds so much promise for the establishment of general principles of law, international customs, rules shared among all countries, if you can just start with some maximally different ones.
Intisar Rabb (31:49):
I fully, fully agree with you. There’s certainly a reason for and great value to be gained from comparing the major systems of the world, in addition to where there are maximal differences. I think Islamic law certainly has to fit into both of those categories and should always, without question, be amongst the jurisdictions compared or included in anything purporting to be universal. And yeah, it serves as a shortcut, particularly if going back to even the definition of what is law. With Islamic law in today’s world, you’re talking about at least 54 countries, which are member nations of the Organization of the Islamic Conference, plus countries even outside of that rubric that consider themselves or have some affiliation or jurisdiction of Islamic law. So wouldn’t it be a shortcut to look at not individual jurisdictions and how each approach its law — which you’re right, I think will always change country to country —
Intisar Rabb (33:08):
I think that’s one of the things that Pierre Lagrange expresses so well, his difference theory about each country. So wouldn’t it be a shortcut to figure out what are the principle interpretive norms rather than local applications — which are always going to differ — but let’s look at the principles, the fundamental principles on which they either all agree or can readily agree because it comes from a tradition that they see as authoritative, as a tradition that in fact grants them the legitimacy to call themselves Islamic.
Intisar Rabb (33:48):
I think of Islamic law as a really, really originalist legal tradition. It’s a part of what makes doing legal history relevant in today’s world in the Islamic context. Because if you can show that something is historically salient, particularly from the early long founding period of some three centuries, 7th to 10th centuries, then you have an airtight argument that this is “Islamic.” It’s a foundational, fundamental principle or value. And it does cut through and provide a shortcut to current applications that are also often skewed, that have much more to do with current local politics of power than they have to do with anything foundational in terms of interpretive and values norms from the Islamic tradition.
Intisar Rabb (34:45):
So, I agree with you. I think that it would be wonderful if we could look at the current state of knowledge in international law that looks to most Western democracies, alongside Islamic law, to view these as maximally different systems where there are nevertheless convergences. The one area I’d want to get away from though is something I’ve written about called the negative citation of Islamic law. Because there can be a positive outcome, and that’s what I think you and I are proposing, that can come from this exercise, and then there’s a negative outcome or at least a negative framing, even if it ends up having a positive outcome.
Intisar Rabb (35:28):
It goes back to the idea that you mentioned about how sometimes folks will say, “Even Hitler decried the use of nuclear weapons, so we can surely agree that that’s bad.” We see that sometimes in citations to Islamic law: “Even Islamic law jurisdictions or Islamic law principles say that we should agree in an interpretive norm, so then we as ‘civilized people’ surely must rise above that.” In the article that I wrote on the negative citation of Islamic law, I actually cite lots of examples from the American Supreme Court where this plays out. I think it comes from more ignorance than malevolence historically. But I think today, with the knowledge and the tools and the resources that we have, I would love to see that negative citation of Islamic law not be the thing that wins the day and for us to think about how can we arrive at a better understanding of these meta universal principles.
Katerina Linos (36:40):
And you are creating this knowledge base. I’m impressed that in addition to kind of books and influencing the constitution on the criminal code of the Maldives and maybe even Iran, you’re creating depositories and archives. These depositories are also easy to search. Let’s start with SHARIAsource and the many periods and documents you are compiling. What’s in there? Who is it for? How did you find the energy to start and continue with this project?
Intisar Rabb (37:15):
Great questions. One wonders. SHARIAsource, it’s an online portal for primary source documents of Islamic law broadly understood from its origins in the 7th century, although we likely won’t get written texts until the 9th or 10th centuries, until today, all over the world, wherever they exist. And then it has some companion projects that are not just primary sources, but informed scholarly commentary on how to read those sources or how to search them. On how to read those sources or what commentary or analysis we gain from them, there’s the Islamic law blog. Then I, being someone who was long interested in and used to do some coding early on, I really just wanted to see if we could do with Islamic law what Westlaw and LexisNexis, and Google even, did for American law, plus whatever else new technologies allow in terms of search and putting together trending data.
Intisar Rabb (38:28):
Right now, to do almost anything in Islamic law, you’d have to read everything. Formal law books are well indexed, well organized, you can figure out what they say, but nothing else is. To make a bridge between what jurists said was to happen and realities of what actually happened, you have to be able to either read the history books and biographical dictionaries and fatwa collections, which are these advisory opinions that jurists issue in response to Muslims’ actual questions regarding some conundrum or that courts may ask these jurists to resolve. You’d have to have a way of figuring out what those things say relevant to any given legal principle. And without reading everything on that topic, which is what I did for my first book project and took about 10 years to do, it’s hard to impossible to do it.
Intisar Rabb (39:29):
But with the use of digital tools, building a library, a corpus online, and using AI to identify some of these ideas — very much guided by a researcher so these things don’t replace the researcher but I think they augment what a researcher can do — it makes possible to approach Islamic law as a legal and historic system that it is in ways that we’re used to doing in these other contexts. So that’s really the thing that both motivated and sustained me because without doing this, I simply wouldn’t be able to do the work that I think is necessary or to arrive at some of these insights or to be of any service, I think, to the conversations like the ones we’re having for international law context, where there’s something to be gained from creating even the means or the bridges between legal systems for that robust non-simplistic comparison. And it’s fun. It’s great fun to be able to do this.
Intisar Rabb (40:35):
The other thing I’ll say is, it’s not my sole effort. I’m leading the effort, but it is absolutely a collaborative, international, many-scholared enterprise. It’s so vast that it’s not something I think any one person can do alone. So I’m really grateful to all of the folks, both on the scholarly side and the data science side, that see a similar need and jump in.
Katerina Linos (41:04):
Well, I hope that when you come to Berkeley, some cold January or February, you visit our Robbins Collection because the Berkeley Library has funding coming for religious law. Directors over the years have tried to compile all these documents, some of them rare. And I don’t know what we have. Moving them from our library to an open access online source would magnify their potential.
Katerina Linos (41:31):
Coming back to concrete applications, I was looking through your blog post — which was not really a blog post, it was so extensive; it was more treatise-like — and there were canons in there, like the party that brings the claim should also ordinarily carry the burden to prove it. What are some canons that you have found that do real work for procedure, for criminal law, or for other disputes? Where you could say, this is going to determine the outcome. The critique in international law against general principles is, your right, we should have some statute of limitations, but that’s not going to help us if we don’t know whether it should be two years versus 10 years versus 15 years. So the principle isn’t really helping at the end of the day, moving the decision in one way or the other.
Intisar Rabb (42:23):
It’s really a matter of raging debate, the question you asked. What do all these canons amount to? And by that, I’m referring to American statutory interpretations. So folks like Bill Eskridge, Anita Krishnakumar, Victoria Nourse, and Ryan Doerfler, the list goes on. But everyone saying, “General principles — are these legal canons, do they actually guide judges to particular outcomes? Do they ever constrain judges?” There’s this concept of dueling canons that Karl Llewellyn first brought up. For every canon, maybe there’s a counter canon. And Anita Krishnakumar has brought up the idea that even when American justices use one canon in a majority opinion, their dissenting brethren — and now sistren, I suppose we can say — might use the same canon and say, “But you got the meaning or the application wrong. Sure, we acknowledge that canon exist, but you are applying it wrong.” So is that canon really guiding or constraining the judges?
Intisar Rabb (43:31):
I say all this about American law to say that the same debate goes for Islamic law. And in fact, rages in the current scholarship on legal canons in the Arab and Persian world where it’s made a comeback, just like it has in American law over the past 40 years. It does raise a question, and I think that there are two ways that it actually ends up mattering. One is, there is agreement on the authoritativeness of canons in both of these jurisdictions. So even if you might disagree about how to interpret the application of a particular canon — say, that there should be finality in court decisions, that’s one of the Islamic law canons and one in international law — what does finality mean? Doesn’t it allow for some appeal? And so all of that can be true, but it at least helps then set the terms of the debate. Without it, you just have an open field, no shared terms of debate, no outcomes.
Intisar Rabb (44:36):
What I really think canons are doing are helping set terms of debate for something that is agreed upon as authoritative. I don’t think they lead to predetermined answers. I think it’s fine to let the interpretive process take its place. And like memes change over time, maybe the way we understand these canons change over time. And by the process of deliberation and debate, I think we arrive at things that are closer to what we need as a society at any given time, regardless of whether we label it as right or wrong. But we arrive at something that’s responsive, I think, to societal need. And if not, there’s agitation to change even the understanding of the legal canons by the scholarly community, by other judges, et cetera.
Intisar Rabb (45:25):
Canons serve to set some values. We’re always wondering: Where is the nexus between morality and the law? Or, we really should leave all of that aside and be legally positivistic. The canons are really doing this work in equitable ways, gathering up the wisdom from centuries pass in a common-law-like way and saying, “Well, we all agreed on this canon.” And that canon itself is reflecting a shared value of maybe efficiency, fairness, finality, and the like in the law. I think it does serve those two purposes, even if they’re not exactly determinative and even if they don’t lead to one outcome every time.
Katerina Linos (46:13):
What do you want to talk about that I did not ask about, like stereotypes of Islamic law that are annoying to have to correct people over and over again?
Intisar Rabb (46:22):
Good question. One stereotype of Islamic law is that it’s a divine, static, unchanging code. I hope that what we’ve talked about today reveals the extent to which it’s really not a code, it’s anything but. Muslim jurists agree that it has divine origins. That is their theology. It’s their political theology. But after that basic agreement, and it explains why they’ve opted into that system — all bets are off after that. There’s this idea we were talking about at the Tragen Lecture of dialogue between the judiciary and the legislature. Well, if you have a divine Legislator, with a capital L, God, who legislated once, what kind of dialogue is that Legislator really having with anyone but the prophet that he purports to legislate to after his death? So I think Muslims say yes, divine origins, but they dispense with this idea of ongoing divine origins or of ongoing institutional dialogue.
Intisar Rabb (47:33):
Knowing they were left to their own devices, they really built up this broad interpretive tradition that forces reason and reasoned debate over time. In applications of law, legal canons do much of the heavy lifting. Along with that process then, it’s a dynamic legal tradition, and we see in every time and every place amongst the multiple schools of Islamic law, each one of which represents another interpretive tradition. It would be like saying, “Well, the textualists on the court are part of the Scalian school.” And then you have the Breyerian pragmatist school or something. Well, in Islamic law, they actually do have labels and their own kind of corporate entity that people subscribe to and say, “I am Hanafi. This is my interpretive tradition.” Those three labels — it’s divine, static, and it’s a code — they flip. It’s believed to be divine in origin, but very much reason base. It’s dynamic over time and place, and therefore is not a code, but a changing set of norms that try to be responsive to any one time or place to greater and lesser degrees of success.
Intisar Rabb (48:54):
The last thing I’ll say is, I think it’s a wonderful and wonderfully exciting tradition with a lot to commend to comparative and international law, especially when you start looking at legal canons, which I think lie at the intersection of the law on the books and the law in action, what’s actually happening out there in the world and in judicial decisions. I would commend it to anyone who’s interested in having a really capacious playing field for their curiosities about the law.
Katerina Linos (49:31):
Intisar, how did you end up learning to code? This is not a common skill among lawyers.
Intisar Rabb (49:37):
I’m not a coder extraordinare right now. I went to college in the ’90s, and that’s when the internet had just made its debut and webpages, email — all of that were there. And I was really fascinated by it and its possibilities. So I learned HTML. I used to build webpages. And that was my means of income for the second half of my college years. My first job was actually as a broadband strategy startup consultant. I still see lots of possibilities for the internet and now AI to augment what we as researchers are doing. I just really love the freshness and dynamism of thought amongst coders.
Katerina Linos (50:22):
What have you been able to do? Because when you say AI and Islamic law, I am a little lost.
Intisar Rabb (50:29):
I’m trying to raise money to do just that in a more serious way.
Katerina Linos (50:33):
If someone’s listening to this and wants to contribute, where should they contribute?
Intisar Rabb (50:36):
They should contact me. It’s a nonprofit startup, the Simurgh Foundation, where we’re trying to basically combine data science with Islamic law to increase access and insights to the field. There’s a lot of AI powering what we do. One example is the ability to digitize Arabic text and then search them. It means training a computer to recognize each Arabic character, which is more complicated because it has a beginning, middle and end position, it’s right to left instead of left to right. All of that is natural language processing, which is a type of AI.
Intisar Rabb (51:20):
One of the really exciting things that we’re doing now is creating this canons tracker. I know some of these canons exist from the canons collections and the Islamic law treatises. It’s pretty structured data. I want to know every other appearance of these same principles in the unstructured data. So we’ve built a tool that can go track canons everywhere else, where it’s not structured. That’s powered by AI. We have to train the machine. We’re working on improving semantic similarity where it means one thing, but the words are totally different but it’s getting at the same point. And then we want to somehow display the results in a visually pleasing, manipulable way for researchers. That’s the world that I’m thinking of.
Katerina Linos (52:14):
I’ll send you a link to a website my team and I created called Digital Refuge where we were able to use mapping and Tableau together to do some work in Arabic and Farsi on what refugees were saying about different countries.
Intisar Rabb (52:29):
You’re all digital data science too! I really think the world is just layered on top of the internet and digital tools now, much of the world. Having an update about that sort of knowledge can allow me as a researcher, scholar, lawyer to have these possible applications in mind. But no, I won’t ever be the coding data scientist. I really appreciate and need the work of those who are.
Katerina Linos (53:00):
I hope you enjoyed this episode of Borderlines. I was particularly intrigued by the connections Professor Rabb draws between the very old and the very new; between memes, Facebook, and Meta on the one hand; and principles from the Mamluk, Ottoman, and earlier periods on the other. If you might want to hear more episodes of Borderlines, please subscribe.