Major categories of Islamic legal canons

Once Islamic legal canons were freely and widely circulating during Islam’s early founding period, jurists began to collect them as a separate (third) genre of Islamic law, beginning around the fourth/tenth century.⁵⁰ They classified these legal canons according to three broad categories: interpretive, substantive and universal.

Recent scholarship on Islamic legal canons follows these same traditional divisions, more or less.⁵¹ An example is the treatment of Muhammad Sidqi al-Burnu, who has compiled the most extensive encyclopedia of legal canons in Sunni law. He divides canons roughly into these same categories — interpretive, substantive and universal. In line with some strands of earlier scholarship, he sub-divides the substantive canons into universal, general and specific. Exceptionally, he further develops his own classification of canons with respect to their sources, to which I have appended labels in parentheses for ease of reference:

1) canons that restate foundational texts (textual-source canons);

2) canons restating legal principles purportedly based on consensus or formal legal reason­ing (interpretive-source canons);

3) canons restating legal principles derived by means of equitable principles such as istihsan, istilah, istishab (equity or extratextual-source canons).⁵²

Left uncategorized by scholars of interpretation and legal canons are a number of procedural and other principles that feature in medieval Islamic legal literature but that have been not fully assessed in modern literature.

My approach seeks to outline a comprehensive classification of Islamic legal canons that incorporates the traditional categories and adds new ones to capture previously uncategorized canons. To that end, I classify Islamic legal canons according to their sources, applications and functions, historically.⁵⁴ Specifically, I assess traditional and contemporary treatments of Islamic legal canons by category and function, and inform that assessment with comparative insights from statutory interpretation theory developed in recent American law literature on the func­tion of canons. In deference to traditional Islamic law treatments, I first present substantive canons and interpretive canons, following the classical model’s internal structure and that of most contemporary scholars writing on the subject. That is, like Burnu, Burujirdl and other scholars who follow the classical divisions, I organize the Islamic legal canons according to the bi-partite division of Islamic law into substantive rulings (fiqh) [substantive canons] and interpretive rules (usul al-fiqh) [interpretive canons]. Also following their practice, I append the universal canons to the category of substantive canons, and assess the interpretive canons with respect to their source and function into textual canons, source-preference canons and extratextual canons. I then divide the remaining canons that fall outside of the two main classical categories by institutional function, classifying them in the terms of new categories as procedural, governance or structural canons.

This functional analysis is where my treatment diverges from existing treatments. I com­bine insights from recently developed theories of statutory interpretation with classical treat­ments of Islamic legal interpretation to outline a fuller account of the form and function of Islamic legal canons.

The new categories that I propose do not change the content or operation of Islamic le­gal canons. Rather, these categories allow us to better classify and assess them, functionally, expanding on the existing accounts articulated in the traditional sources of Islamic law for jurists, judges and executive-administrative actors as they changed over time.

2.1 Substantive canons: universal, general, specific

Substantive canons elaborate basic substantive principles of law as concise restatements that function as guidance to judges and jurists in the form of presumptions, tie-breakers or clear statement rules to aid in the interpretation and application of rulings in major areas of Islamic law. These canons often reflect aggregated legal rulings and thus value judgements about privacy, property, social morality and the like.

(1) a small set of universal canons said to apply to all ofIslamic law, almost as policy propositions;

(2) a larger set of thousands ofgeneral canons that have wide application but that tolerate some exceptions (and thus include a subset of limited (juz'i) legal canons that nevertheless are general enough in scope to include in this category);

(3) even more specific canons that apply to particular subject areas of law with a more limited scope.

2.1.1 Universal legal canons (qawa'id fiqhiyya kulliyyaj

Muslim jurists typically identified this set of five canons on which all legal schools agree, both Sunni and Shi'i, as of universal application:⁵⁶

(1) Harm is to be removed: al-darar yuzal.

(2) Custom is legally authoritative: al-'ada muhakkima [or: muhakkama].

(3) Hardship requires accommodation [of strict legal rules]: al-mashaqqa tajlibu al-taysir.

(4) Certainty is not superseded by doubt: al-yaqin la yazulu bi-l-shakk.

(5) Acts are to be evaluated according to their purposes: al-umur bi-maqasidiha.⁵⁷

Rather than directly resolving cases, these canons tend to encapsulate the presumed purpose or spirit of the law, in ways distinct from discussions of the five so-called universal objec­tives (maqasid al-shari‘a) of Islamic law.⁵⁸ The two concepts are often confused.⁵⁹ Historically, Muslim jurists have treated the five universal canons as broad interpretive rules, similar to mod­ern statements of statutory purpose or policy, meant to guide or constrain judicial interpreta­tion in choosing between conflicting or ambiguous Islamic legal rulings for particular cases. They derived these canons inductively, from an aggregate view of legal rulings elaborated during the founding period.

That said, the two sets of principles, universal canons and universal objectives, converge on a single expression that some medieval jurists held was the principle that underlies all of the Shari'ah, and that several modern jurists have suggested be used to evaluate and reform Islamic law.⁶³ Islamic law, and the canons and objectives that express it, were to serve an overarching purpose of promoting human welfare.⁶⁴

2.1.2 General legal canons fqawa'id fiqhiyya /juz’iyya^

A large set of principles, ranging in the thousands,⁶⁵ form the bulk of Islam’s substantive legal canons. These canons often restate settled doctrines of law in various subject areas of Islamic law, including ritual law, commercial transactions and criminal law.

Canons restating declaratory legal rulings address the validity or legal status of a partic­ular act, allowing a judge or individual to determine whether an act is either permissible or of neutral value, or whether instead it falls on a scale of valid, defective or invalid/void — as applied to the proper way to perform prayer or to fast in ritual law, or to form a contract or conclude a sale in commercial law. An example of a canon that restates a ritual law- declaratory legal ruling concerns the validity of ritual-completion (qT'idat al-faragh). It spec­ifies that prayer, ablution or other ritual acts are to be deemed valid once completed, even if there was doubt about whether each component was accurately or adequately performed. This canon helps direct an individual legal agent’s attention to ritual performance with a focus on the intention rather than the technicalities and encourages that agent or his associ­ates to avoid continuously second-guessing the validity or method of performing religious rites.⁶⁶ A commercial law example, along similar lines, is the severability canon, specifying that ‘a defective condition does not void a contract’.⁶⁷

Canons restating injunctive legal rulings address the legal classification of a particular act or duty along the scale of obligatory, encouraged, permissible (legal), discouraged, and impermissible or prohibited (illegal). An example of a canon that restates a ritual law-injunctive legal ruling is the intoxicant canon, stating that ‘every intoxicant is prohibited’.⁶⁸ Another example of a re­statement of a commercial law-injunctive legal ruling is the limited-goods sale canon, stating that ‘everything good that the law discourages eating, it discourages buying and selling’.⁶⁹

In my review of canons historically, I find that these canons often reflect the societal values, social attitudes and regional preferences of scholars elaborating particular areas or schools of law. Furthermore, many of these canons are only enforceable to the extent to which a local authority or judge deploys them. Notably, not all of these canons are considered subjects of law on modern, secular definitions. The canons related to ritual law or ethical norms (such as fair treatment of parents), for example, may be called ‘religion canons’, and are typically individual-regarding and unenforceable by legal actors. But I include them here because Muslims jurists included them in the corpus of Islamic law and its legal canons, and moreover, because they very much considered them ‘law’ in the sense that they originated with a divine Legislator and, in Muslims’ understanding, carry the potential for reward and punishment — if not this-worldly, then other-worldly.⁷⁰

2.2.3 Specific leqal canons (dawabit fiqhiyya. usul⁷')

A related set of subject-specific substantive legal canons or simply specific canons include restatements and presumptions of more limited and sometimes disputed scope than the general substantive legal canons above. Many of these specific canons often qualify the general canons. And many of them are often subject to intra-school and inter-school contestation. One scholar distin­guishes the general canons from specific canons by defining the latter as rules that are ‘limited and constrained, whether by a general principle, a definition, mention of a measure, specifica­tion of specific categories, conditions, legal causes [to which it applies], or other limitations’.⁷²

Examples are plentiful. One example has been mentioned before:⁷³ the paternity canon, which applies narrowly to a specific issue of family law and stipulates that ‘the child be­longs to the [marital] bed: al-walad li-l-firTsh’, that is, that paternity is assigned based on the known marital relationship of the mother of a child notwithstanding an unknown or con­tested father.⁷⁴ Judges could use this canon to make determinations about paternity, from which would flow judicial rulings on child custody, inheritance and other issues. An example of a specific substantive canon that modifies a general substantive canon is the corollary to the well-known commercial law canon stating that ‘Muslims [are to] honor contractual stipula­tions: al-muslimun 'inda shurutihim’. This general canon for interpreting contracts is modified by a specific canon clarifying that a contractual condition is valid only if it does not go against the Qur'an or Sunna. An example of a contested specific canon has to do with the property law principle stating that ‘whoever destroys property is liable for its replacement: man atlafa shay'an fa-'alayh damdnuh’. Most schools of law agree on the validity of this canon.⁷⁵ But note that it violates an early Hanafi ruling against liability for destruction of property that structured to confer purely charitable or public benefit: ‘adam daman al-mandfi‘.⁷⁶ Another disputed canon had to do with the legal status of slave women: were they in a type of marital relationship with their masters? Whereas the textual sources stipulate consent to effect this type of relationship, some early jurists and most later jurists ignored the textual rule and presumed consent, and thus assumed that a marital relation existed to render sexual relations between masters and slaves licit.⁷⁷ Falling in the latter camp, the famous Judge Shurayh decided a case relying on the contested canon that the sale of a slave woman effects her divorce.⁷³ Betraying the tenuous nature of the canon, this same judge is said to also have once ruled on the basis of the related canon specifying that marriage is in the hands of the master, and divorce in the hands of the slave.⁷⁹

Two general notes bear mention about the form and function of these substantive le­gal canons. First, like the general substantive canons, the specific substantive canons often reflect the societal values, social attitudes and regional preferences of scholars elaborating particular areas of Islamic law within their chosen school or within their particular area of subject-matter of expertise. Second, and importantly, substantive canons in one area of law often operate alongside different substantive canons in other areas of law, both general and specific. For instance, medieval Muslim judges sometimes invoked the family law paternity canon alongside the criminal law doubt canon. In some instances, the juxtaposition of these two canons resulted in judicial avoidance of punishments for a husband’s unproven and du­bious allegations of adultery against his pregnant wife. That is, when deploying both canons, judges concluded that, even though a husband might accuse his wife of marital infidelity, without certain proof of such infidelity, the paternity canon bound the judges to ascribing paternity to the husband and the doubt canon directed them to avoid punishment against the wife.⁸⁰ In this case, use of the canons perhaps counter-intuitively tended towards fewer im­positions of legal duties or punishments, and often left less room for judges to intervene in the rights of individual legal agents. More generally, a judge’s selection of multiple canons guided interpretation even though it did not always constrain or determine it.

2.2 Interpretive canons

Interpretive canons guide judges and jurists on how to interpret foundational texts when devising legal rulings (ahkam) that might be included in a fiqh treatise, as well as on how to interpret the law and facts when issuing opinions on novel legal questions in response to petitions or (fatwas) via decisions in court cases. Unlike substantive canons, which jurists sometimes direct ordinary lay people to use in guiding their actions, interpretive canons are specifically designed to guide legal experts on formulating scholarly opinions and rulings in their move from general jurisprudence to substantive law.⁸¹

Interpretive canons cover what may be called textual canons (linguistic rules for how to interpret texts), source-preference canons (source-specific principles governing how to weight different types of foundational texts in instances of potential conflict), and extrinsic canons (presumptions for how to rule in cases of silence). Examples of each follow.

2.2.1 Textual canons

Of the interpretive canons, textual canons instruct jurists and judges on how to interpret Islam’s foundational texts (Qur'an and Sunna — which, recall, may include an expansive definition of hadith reports that countenanced changes over time) to derive the ‘ordinary meaning’ or ‘objectified intent’,⁸² based on common-sense rules of Arabic grammar and style. For exam­ple, there is the literal meaning canon (read: ordinary meaning, in my view) instructing judges to adopt the literal [or ordinary] meaning over the figurative unless there is an indication otherwise.³³

Such canons can be informed by competing, or more accurately, qualifying canons. As suggested by the literal meaning canon itself, the general import of a legal text or statement is to be qualified when there is cause to diverge from the literal (or ordinary) meaning in particular areas of law, such as contract law or the law of oaths. An example is a subsidiary principle to the universal canon on the authoritativeness of custom that is itself a specific canon:⁸⁴ literal meaning is superseded by customary norms.³³ For example, if someone swears an oath that he will never ‘set foot in’ a particular person’s house, and then only technically sets his foot in that house without actually entering, he will not be liable for performing an act of expiation that Islamic ritual law would otherwise require for breaking an oath. This is because, customarily, the expression ‘set foot in’ means actually entering a place and presumably staying for some time, so the law attends to that ordinary, customary meaning over the literal meaning of the statement.⁸⁶ As another example, someone renting a house is held to the default, implied conditions and rights of doing so, even if those conditions are not explicitly stipulated in a contract. This is, again, goes according to custom that gives cause for diverging from the text or for interpreting the text to make sense where it is silent.⁸⁷

These canons reflect classical Arabic linguistics governing grammar and customary usage. These linguistics rules, in form, were — like legal canons — elaborated during the founding period and further codified in the fourth and fifth centuries in works ofjurisprudence and legal canons.⁸⁸

2.2.2 Source-preference canons

Also among the interpretive canons are source-preference canons. These canons specify how judges and jurists should choose among multiple and/or conflicting sources addressing the same legal issue. In other words, these canons suggest how to weight different types of sources, such as the canons privileging foundational texts over interpretive rules,³⁹ custom over con­tract⁹⁰ and the first-in-time opinion over another equally valid opinion.⁹¹

Such canons help guide the judge or jurist’s task of interpretation by providing rules of thumb for considering a hierarchy of sources given the wide interpretative discretion they wield in the frequent absence of text or, alternatively, the presence of multiple or conflicting texts. The canons’ attempt to guide or constrain discretion reflects the jurists’ aspirational values of divine legislative supremacy, while at the same time, they reveal the prominent role of custom and other extratextual sources of decision-making in Islamic law.⁹²

For example, custom can sometimes supersede the text according to some jurists. To be sure, most jurists maintained that every jurist and judge was obliged to privilege text over cus­tom. But Abu Yusuf disagreed, espousing the view that the doctrine of istihsdn (equity) really meant accommodating custom in ways that made it necessary to sometimes reject text (tark al- nass). Far from seeing this notion as extra-legal, he considered the incorporation of equity into Islamic law a recognition of custom’s role in constructing it, and explained that istihsdn rulings were both legal and justified precisely ‘because custom was considered’.⁹³ The compilers of the Mecelle adopted this position, emphasizing legal canons that carve out a significant role for custom and that accommodate changes in the law based on changes in time and place.⁹⁴

The third in the category of interpretive canons is a set of extrinsic canons — canons that ref­erence extratextual sources, ones extrinsic to the traditional theory of Islamic legal sources. This set of canons refers to presumptions and other principles of interpretation in matters where the foundational texts — with their expansive meaning, including the Qur'an and Sunna as well as consensus, textual canons and source-preference canons that are all consid­ered hadith — yield absurd results or no result at all. In Sunni law, extrinsic canons also in­corporate jurisprudential ‘sources’ in the lexicon of authors of usul al-fiqh that reflect what we might call equitable principles, such as, istislah, istihsan and istishab, as well as, again, custom.⁹⁵

Applications of these canons are also plentiful. The universal legal canon specifying that custom has legal authority and the related canon, stipulating that there is no bar on changes in legal rulings with changes in the times often produced different legal rulings where jurists believed that their interpretations, by reference to these canons together, would better give effect to the law than strict adherence to the text.⁹⁶ Consider, for example, that the Qur'an specifies eight categories of zakat recipients — the once-mandatory poll tax that typically now operates like a tithing that is religiously obligated on individual Muslims.⁹⁷ One of these categories, mu'allafat qulabuhim, included people to whom the Prophet reportedly gave money to attract them to Islam — those who needed more material incentive. Despite the explicit Qur'anic text, the second caliph 'Umar cancelled out this category, reasoning that, because Islam had success­fully been established as a religion and a political community, the law’s rationale and thus the law itself — albeit specified in the text of the Qur'an — no longer applied.⁹⁸ Two centuries later, Abu Yusuf also announced changes to the rule of zakat. He disagreed with the practice of giv­ing each category of recipients one eighth of the zakat funds, based on his determination that government workers should receive reasonable amounts rather than pre-mandated (Qur’anic) amounts that may or may not meet their needs. He thus wrote in his treatise on tax law, Kitab al-Kharaj that the decision as to the precise amount was to be determined by the caliph rather than the jurists interpreting the foundational texts, as it had been before.⁹⁹

The category of extrinsic-source canons also includes general legal presumptions in both Sunni and Shi'i law that operate as default rules in cases of silence of the law. Sunni law, for example, specifies a presumption of permissibility for transactions, and a presumption of impermis­sibility for devotional acts or in matters of sexual ethics.¹⁰⁰ Likewise, Shi'i law includes a set of procedural presumptions designed to guide jurists in instances of doubt about a legal ruling.¹⁰¹ Like Sunni jurists, Shi'i jurists maintain that these presumptions, or canons, are borne from an aggregation of the texts about which they have deliberated to extract a general principle. They further acknowledge that such rational presumptions are part and parcel of the disci­pline ofjurisprudence (usul al-fiqh), but nevertheless treat them as legal canons because of the way they function as default rules in cases of textual silence or ambiguity.¹⁰²

As default rules, these presumptions-as-canons reflect a particular ‘theology of delega­tion’.¹⁰³ Those who accept them, based as they are more on reason and logical deductions than on text, believe that, while God is the supreme Legislator, jurists have the authority, discretion and duty to interpret Islamic texts. For them, these canons serve gap-filling or tie-breaking functions when the text runs out. The jurists applying them believe themselves to be agents of the law endowed with the knowledge and training to consider and resolve complex questions of law and ethics, and thus to be in derogation of these God-given facul­ties by not exercising reason. In their view, morality is outlined by the divine Lawgiver, and its parameters in the world are defined by reasoned deliberation and sometimes applications of Islamic law. By contrast, those who reject these canons, including some Hanballs as well as most Zahirl and Akhbarl jurists, adopt a doctrine of non-delegation. Believing that God is the sole Legislator, and that legislation starts and stops with a limited set of foundational texts, they maintain that God designated a ruling for every situation in the world. They further believe that law and morality are determined by existing rules elaborated within Islam’s foundational texts and that the job of the technically trained jurist or hadith scholar is to discover them.¹⁰⁴

The importance of these theories to the entire concept of Islamic law — that of divine leg­islative supremacy and of the theology of delegation — cannot be understated.¹⁰⁵ They go to both structure and interpretation of Islamic law, and form the epicentre of the explosive disagree­ments from which extend the fault lines dividing jurists in camps that diverge on major ap­proaches to interpretation (in debates between textualists versus purposivists) and according to concepts of the role of reason in defining Islamic law (in debates on law and morality).

2.3 Procedural canons: evidence and judicial proceedings

A third set of canons are well-recognized principles that often emerged from judicial practice to form the Islamic law of procedure: the procedural canons. These canons are typically undif­ferentiated from the substantive legal canons in much of the existing literature on Islamic legal canons. But it is clear that these canons were historically subject to separate treatment among judges and jurists deploying them and in judicial manuals, even when often combined with other rulings in works of substantive law or jurisprudence. As a consequence of their rather rough classification historically, procedural canons are even more understudied than their larger set of Islamic legal canons, even though they are essential to the operation and full un­derstanding Islamic law.

These canons comprise three types: evidentiary canons that regulate the laws of proof, judicial procedure canons that advise litigants on how to properly bring cases and that advise judges on how to adjudicate them, and judicial conduct canons governing judges’ conduct and their institutional relationship to other authorities. Some of these canons, like the doubt canon, implicate all three types.

2.3.1 Evidentiary canons

Evidentiary canons are sometimes connected to a handful of foundational texts instructing judges on the evidence required for initiating or proving claims and on the allocation of burdens of proof for deciding cases. At the same time, these canons incorporate the far more prevalent phenomenon of judge-made evidentiary procedures: extratextual presumptions devised to guide judicial decision-making where text-based guides are lacking.

The best-known text-based evidentiary canon is the principle placing the burden of proof on the plaintiff: the burden of proof is on the claimant and the respondent may swear an oath of de­nial'⁰⁶ A supplementary canon is rooted in customary usage is the presumption that written evidence is as probative as oral testimony.'⁰⁷ A list of related presumptions establish that the status quo or any judicial determination remains in effect until and unless some evidence establishes the contrary:

• The default (presumption) is to preserve the status quo [unless evidence is presented to establish the contrary].¹⁰⁸

• The legal determination established at one point in time remains in effect so long as there is no evidence establishing the contrary'⁰⁰

• A judge is to issue decisions that affirm the preexisting status of a claim [unless evidence is presented to the contrary].¹¹⁰

These stipulations are limited by another presumption specifying that a prerequisite to rec­ognizing the status quo or existing legal status of an act as valid is that it not be harmful.¹¹¹

Lest these presumptions-as-canons leave the impression that Muslim jurists seek through Islamic law to maintain the status quo, exclusively, other evidentiary canon indicate accom­modation of legal change.¹¹² One evidentiary canon specifies that rights once duly established become the new status quo that the law then protects, whoever possesses a right or claim has exclusive rights to its enjoyment, until probative evidence establishes the contrary.¹¹³ Other evidentiary canons sometimes create mechanisms to expand judicial discretion — again, against main­taining the status quo. The doubt canon is a case in point. This canon — in addition to being a substantive canon governing applications of criminal law and an interpretive canon govern­ing definitions of it — is a principle recognized in every school, and it became a tool by which judges and jurists asserted the authority to define doubt, and therefore substantive criminal law as well as the laws of evidence and procedure for criminal law.¹¹⁴

Evidentiary canons could also be the procedural manifestation of specific canons unique to a particular legal school. Consider, for example, the contested canon reflecting the Hanafi principle permitting court translation without verification — stipulating that ‘a translator’s statements are to be accepted’.¹¹⁵ Consider, too, the disputed canon that a judge may rule on the basis of a single witness if he knows of the witness’s reliability.¹¹⁶ Finally, consider the presumptions permitting certain types of circumstantial evidence as bases for valid legal rul­ings.¹¹⁷ For instance, in some schools of thought, if someone leaves an empty house afraid and confused, with a blood-stained knife in hand, and someone else enters the house and sees a slaughtered person in the house, there is little doubt that the one who exited was the killer. The law need not speculate on alternate or far-fetched possibilities (ihtimalat wahmiyya), such as the idea that the person might have committed suicide.¹¹⁸ This ruling is of course in direct contradiction to classical applications of the doubt canon, which prohibited guilty determina­tions as a matter of law on similar facts. In fact Ibn al-Qayyim and other jurists recounted an early ‘case’ with almost precisely those hypothetical facts to construct and justify the doubt canon itself.¹¹⁹ Such divergent canons dovetailed with a judicial push among Hanafis and Shafi'is to permit reliance on judicial knowledge, or ‘judicial notice’, drawing on other disputed legal canons among early Muslim jurists.¹²⁰ The divergence between these canons shows that they are sometimes school- or jurist-specific, and signal the extent to which evi­dentiary canons can be discretion-conferring.

Still other evidentiary canons may constrain discretion, directing judges on how to make a determination in cases of conflicting evidence. For example, one civil law eviden­tiary canon stipulates that contradictory evidence does not suffice as probative.¹²¹ Thus, for ex­ample, Islamic law contains the generally agreed-upon rule, that if two witnesses provide and then retract their testimony, neither instance of testimony is probative.¹²² (Notably, this canon did not apply to most criminal contexts, which was governed by the doubt canon — which liberally permitted retractions, on the basis of which criminal liability was dropped.)¹²³

All these canons reflect changing societal norms and customs about proof, social cohe­sion and the scope ofjudicial discretion. The last of these elements is bound by the differing parameters of interpretive leeway afforded by a particular jurist or school’s theology of dele­gation, as noted above: how much authority did the divine Legislator delegate to qualified human agents to decide matters of law and ethics? In debates about presumptions and other extrinsic-source canons of Islamic law, judges and jurists frequently defined the parameters of these larger questions only implicitly as they exercised what they perceived to be the scope of their own discretion to resolve cases and to assign legal or moral culpability elsewhere.¹²⁴

2.3.2 Judicial procedure canons

Judicial procedure canons address rules governing the courts or litigants’ appearances before judges, including issues of standing, competence, or the sufficiency of a case or controversy to entitle a person with a grievance to petition a court in the first place. These canons also guide deter­minations of personal status and accompanying rights and obligations — where distinctions in classical Islamic law often revolved around identitarian features of a person’s background such as gender, minority, competence, religion, freedom, lineage, and even wealth or class.

Unlike the evidentiary canons, most of the judicial procedure canons are not codified in the legal canons literature even though jurists frequently discuss and apply them in their opinions. Examples include rules that stipulate different outcomes based on the status of the legal subject:

• Canons governing non-Muslim and women legal actors in medieval Islamic lands: A Muslim will not be given the death penalty for the death of a non-Muslim;¹²⁵ non-Muslim testi­mony is accepted for cases involving non-Muslims;¹²⁶ and canons reflecting rulings stipulating two women's testimony for that of one man.¹²⁷

• Canons governing slave law: The rule of retaliation does not apply to slaves.¹²³

• A canon governing status hierarchies: the elite-leniency canon — Instructing judges to over­look the misdemeanors of high-status offenders.¹²⁹

While Islamic law in theory espoused values of egalitarianism, justice and human welfare, these canons reflect many early attitudes suggesting that proponents of Islamic law histor­ically adopted competing values. In particular, these divergent canons suggest that status hierarchy, gender discrimination, and religion-based rights or personal jurisdiction were to a certain extent uncontroversial norms in medieval and early modern Islamic societies.

2.3.3 Judicial conduct canons

Judicial conduct canons detail rules governing judges themselves in circumstances that require them to self-regulate, such as controversies giving rise to recusal, the need to consult expert jurists when uncertain about the applicable legal ruling, and appropriate mechanisms for a judge or his deputies to resolve cases and execute judgments. For instance, early judges and jurists articulated various principles prohibiting judges from deciding cases when angry, requiring judges to consult expert jurists to clarify ambiguous substantive law rulings, and enumerating behaviour for which a judge could be removed from his position ‘for cause’.¹³⁰ This area is perhaps the least well developed in the legal canons literature. Most of these canons are found in the judicial conduct literature (adab al-qddd), judicial biographies (akhbdr al-quddt) and in historical chronicles.

2.4 Governance canons

Governance canons are principles that reflect and encapsulate in some measure the varied the­ories of Islamic public law and political-legal authority (siydsa shariyya). They address such matters as the authority to set and enforce rules of criminal law, taxation, war and the like. In American law, governance canons ‘apportion institutional responsibilities, where the Court sets forth the duties of umpires (courts) and other players (agencies and legislators) in the on­going elaboration of statutory schemes’.¹³¹ In Islamic law, these canons apportion institutional responsibilities among the principal institutions and actors in medieval Muslim societies: courts, judges, and caliphs. They also create avenues for issuing pardons or equitable judg­ments outside of the four corners of Islamic law’s textual sources, and they sometimes impose constraints on one institution in favour of another on the basis of core values of morality, theology of delegation, or legislative supremacy.

Examples include the following:

• Canons allowing delegation of legal authority to the political ruler to resolve contested issues of law (for instance, the canon stipulating that it is for the imam to determine the extent of discretionary penalties in proportion to the severity of the crime).¹³²

• Canons laying down default rules to resolve cases where there is no legal ruling or con­tractual agreement to resolve a claim otherwise (for instance, the canon specifying that whoever dies without a will and no heirs, his money goes to the public treasury);¹³³ and

• Canons imposing power constraints on the political ruler vis-à-vis individual rights (for instance, the canons stating that the imam may not take anything from the possession of an in­dividual unless there is a well-known entitlement to do so,¹³⁴ and that [government] relations with the people should be based on the public interest¹³³).

Later iterations of a new set of governance canons arose in the Ottoman Empire, when state- appointed jurists attempted to create a new school of Islamic law that would merge classical Islamic law with Ottoman statutes or kanuns. Ahmet Cevdet Pasa, the leader of the project that resulted in the Mecelle (the Ottoman Commercial Code) — which began with a codification of 99 canons followed by individual articles that drew on Islamic commercial law — was the unsuccessful proponent of this attempt.¹³⁶ New governance canons also appear in contempo­rary legislation in Muslim majority countries. Contemporary scholars studying these types of canons call them legislative canons (qawa'id qdnuniyya) and define them as ‘the principles of social organization that explain the relationship of the state to the people’.¹³⁷ In all three periods, (early) medieval/classical, Ottoman and modern, it is notable that these governance canons are typically derived from local political-legal norms, not from Islam’s foundational texts.¹³⁸

2.5 Structural canons

A final category is structural canons. This term is a label for general principles or legal canons that both reflect and construct the political-institutional structures in early Islamic contexts. The foundational texts designate no specific religious, constitutional or judicial structures. Nor do those texts govern the separation of or interplay of relations between actors within those institutions. Instead, they presage a feature of interpretation that Professor William Eskridge and other scholars have observed even in modern contexts with constitutions that do establish (typically three) major branches of government along with a separation of powers: namely, that American judges deploy legal canons and use interpretation more broadly to allocate power.¹³⁹

Similarly, I argue that Muslim judges and jurists historically deployed structural canons to allocate power between the institutions that they simultaneously helped construct. This arrangement featured in medieval Islamic law even more so than in modern contexts, such as that of the United States or Muslim-majority constitutional countries, where state-law foundational texts (in the form of constitutions and basic laws) purport to define institutions and therefore provide a textual baseline.

The examples from Islamic history are plentiful, and relate to every major institution — courts, caliphs and jurists — and they reflect the unique features of Islamic law, from its legal pluralism to its diffused structures. One example will suffice to show how jurists deployed structural canons to bolster the authority of the courts, given Islamic law’s radical legal plu­ralism among the jurists. According to what we might call a finality canon, a decision based on judicial interpretation cannot be reversed simply by a different interpretation.¹⁴⁰ For example, if a judge has adjudicated a dispute on the basis of his own interpretation, that is, in the absence of a clear text, and then retires, another judge looking into the matter who comes to a different conclu­sion may not reverse the first judge’s ruling. Provided that the initial decision does not violate any of the rules governing valid interpretation, a mere difference of opinion on the part of the new judge cannot justify a reversal. This canon, often attributed in Sunni literature to the sec­ond caliph, 'Umar, is backed by judicial practice. Jurists justifying this canon argue that, in his capacity as a judge, 'Umar reportedly ruled in ways contrary to his predecessor, Abu Bakr, but did not attempt to declare the first caliph’s ruling invalid because he understood that his own interpretation was not necessarily better and that both were equally valid.¹⁴¹ Contemporary Islamic law scholars reflecting on such episodes explain that this canon creates a notion ofjudi- cial finality. If one rule was allowed to cancel another, there would be nothing to stop a second reversal or infinite number of reversals, and thus there would no stability or finality ofjudicial decisions in Islamic law.¹⁴² In this way, medieval Muslim judges and jurists used legal canons to define the powers of the courts and other institutions. That is, through interpretation generally and the use of legal canons specifically, these legal actors both defined the power of varied legal and governing institutions individually and allocated power among them collectively.

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