Over a decade ago, as a 1L at Yale Law School, Intisar Rabb served on a faculty-student committee that selected Lani Guinier, a voting-rights lawyer turned law professor now at Harvard Law School, to deliver the school’s prestigious James A. Thomas Lecture. Since then, Rabb went on to join the legal academy, and Guinier became Rabb’s colleague, mentor, and friend. On February 18, Rabb returned to Yale to deliver the 2012-2013 Thomas Lecture to an audience of faculty and students. Among those present was Thomas himself, a former admissions dean at Yale.
Rabb is the newest member of the NYU Law faculty—having joined last fall as an associate professor of Middle Eastern and Islamic Studies and Law—and she is the youngest scholar selected to give the Thomas Lecture. The lecture was established to recognize scholars whose work addresses concerns of communities or groups that are marginalized within the legal academy or society at large. Rabb’s address, titled “The Burden and Benefit of Doubt in Islamic Law,” drew on research she is conducting for a book on the same topic to be published by Cambridge University Press later this year.
Examining doubt runs contrary to the typical focus of inquiry in Islamic jurisprudence, Rabb noted at the outset of her address. After all, certainty provides the gold standard by which medieval Muslim jurists measured the strength and validity of legal rulings based on texts that Muslims believe to be of divine origin. But certainty, Rabb noted, was frequently elusive (as these Muslim jurists well recognized), and it was “often conflated with textualist meanings of law.” The potential harms from any lack of certainty could be substantial. In criminal cases, for example, doubt about the law or facts, could present “the God-subservient Muslim [textualist] with a paralyzing burden: Apply a harsh criminal rule even if doubtful about the facts, or dismiss the rule in cases of doubt and risk disobeying the lawgiver.” It turns out though, Rabb said, that this sort of strict textualism was not the mainstream approach to Islamic legal interpretation historically.
Rabb said her inquiry asks: “When the religious texts ran out, how did Muslim jurists fill in the blanks? Absent clear legal texts to guide a constant stream of novel cases how did they resolve questions that left them initially in doubt?”
The answer, Rabb noted, has to do with the very definition of Islamic law as a legal tradition that extends beyond text to encompass societal and institutional context. Over time, Rabb said, “Muslim jurists came to see doubt less as an unmitigated burden to be avoided, and more as a ubiquitous challenge to be resolved. … In the end, Islamic law was less about what the text said, and more about how Muslim jurists assumed the institutional power to confront contexts about which the text did not say very much.”
At NYU Law, this semester, Rabb is teaching a survey course on Islamic law and co-convening the Constitutional Transitions Colloquium with Sujit Choudhry, Cecelia Goetz Professor of Law.
Watch the full video of Intisar Rabb's James A. Thomas Lecture (46 min.):
Posted on March 14, 2013