New directions for the study of Islamic legal canons

After a long period of largely neglecting the study of legal canons, Islamic law scholarship recently has corrected course.¹⁴³ Hossein Modarressi suggested almost three decades ago that studying Islamic law without legal canons might actually block avenues for ‘grasping the nature of Islamic law and legal interpretation both historically and in the contemporary world’.¹⁴⁴ I agree.

3.1 Islamic legal history: medieval and modern

Although conventional accounts of Islamic law give legal canons short shrift, this essay illustrates that canons played a prominent role in various aspects of Islamic law’s theory and practice, among jurists, judges, teachers and more. Jurists frequently incorporated legal canons into their works of substantive law and jurisprudence. Through legal canons, they offered restatements of settled or disputed legal policies, provided rationales for their opinions, and derived new rulings for novel cases.¹⁴⁶ Judges also used legal canons in courts. Through regular use of the legal canons, they resolved cases, helped allocate power and constructed an Islamic law ofprocedure. Teachers regularly appealed to legal canons to instruct students of Islamic law in traditional educational settings on the major presumptions and precepts of Shari'ah as well as how jurists constructed them.¹⁴⁷ All of these features make the genre of Islamic legal canons ripe for study towards un­covering more robust definitions of Islamic law and legal history, medieval and modern.

Most existing scholarship on legal canons, including my own, has focused on particular aspects of their development in medieval history.

Yet, it is no understatement to say that Islamic law cannot be fully understood without understanding the essential features and functions of legal canons. Incorporating legal canons into the study of Islamic law means recasting Shari'ah as both substance and procedure, and it points to ways in which aspects of both were contingent on changing institutional and cultural contexts. To that end, this section sketches the modern history of Islamic legal canons, and briefly considers related developments in law, politics and scholarship in the majority-Muslim world today.

From a legal historical perspective, the modern history of Islamic legal canons was largely defined by the 19th- and 20th-century codification and constitutionalization of Islamic law, as first symbolized by the 1869 Mecelle. These efforts emerged from a period of colonialism or reform driven by encounters of global powers with the majority-Muslim world (primarily in the Middle East and North Africa, South and Southeast Asia, and sub-Saharan Africa).

Each development had effects on the local conceptualization and application of Islamic law. Codification limited the dynamic tradition of the jurists and changed the system of legal education. Constitutionalism incorporated Islamic law as state law, which often balanced against liberal values and structural norms that differed from the public values and gover­nance structures in pre-modern Islamic societies. And continued foreign influence had the unintended effect of inflating the appeal of a version of classical Islamic law that bore little knowledge of or resemblance to the historical doctrines and practice.¹⁴⁹ American and Eu­ropean dominance evoked a sense of nostalgia among many legal and political actors among 20th-century Muslim-majority countries that had recently become independent.

From a political and governance perspective, the failure to consider the history and use of legal canons in modern conceptions of Islamic law can help explain some of the problems oflaw and politics in the modern Muslim world. Among many of those agitating for a return to the past, Islamic law amounts to a medieval snapshot that is all substance, no procedure. Elsewhere, I have critiqued this resurgence of Islamic law in politics based on originalist visions of Shari'ah that cite the authority of the founding period but in fact exhibit poor understandings of both law and history from that period and afterwards.¹⁵¹ Such nostalgic modernists and Islamists are often neither lawyers nor historians. They tend to be unfamiliar with Islamic law beyond basic texts, snapshots of which do not include informed perspectives on Islamic law as it developed with respect to (a) particular institutional structures and medieval social mores, (b) substance as it interacted with and was partially defined by procedure, and (c) all three genres of Islamic law — substantive law, jurisprudence and legal canons. Familiarity with each are necessary to inform internal-practical as well as external-historical conceptions of Islamic law.

From the perspective of the community of Islamic law scholars, the last century-and-a- half has seen increased scholarly attention to legal canons in direct contrast to its decline in the state.

With renewed interest in Islamic law for both scholarly and public purposes, perhaps the history of Islamic legal canons has become as relevant again as it is essential to understand­ing Islamic law. Over the past decade, certain state institutions in Iran, Egypt and a handful of other Muslim-majority countries have paid close attention to legal canons, sometimes including them in codes and court decisions. In several more Muslim-majority countries, legal education has re-incorporated legal canons in the study of Islamic law. In almost every country, whether Muslim-majority or not, legal canons play a sizeable role in jurists’ opin­ions (fatwas) issued by non-state-affiliated experts on Islamic law.¹⁵⁶ These developments underscore the continued scholarly relevance and reach of the history of Islamic legal canons.

3.2 Islamic legal theory: interpretation and legal change

In Islamic legal theory, legal canons and the jurists who deployed them historically per­formed varied functions depending on the particular juristic or scholarly approach.

Descriptively, legal canons will be instrumental for developing positive theories of Islamic law and legal process. Legal canons expose scholars to various subjects of Islamic law, and organize individual rulings under general principles that obviate the rather impossible task of assessing every single ruling in what has been called the excessively casuistic nature of Islamic law.¹⁵⁷ The canons provide keys for exploring the social, political and jurisprudential rationales behind the opinions ofjudges, muftis and other legal arbiters that often produce legal change.¹⁵⁸ And the canons provide a common legal grammar for comparing different in­terpretive processes and outcomes attached to the varied types of legal canons present across Islam’s schools of law — whether agreed upon as consensus canons, or disputed as contested canons.¹⁵⁹ Appraising canons according to these functions thus suggests these three areas of promising research for better devising descriptive theories of Islamic law, as discussed here.

Prescriptively, can Islamic legal canons provide tools not only for understanding Islamic law descriptively but also for constructing it? In internal debates about Islamic law, this ques­tion has been marked as one of the major questions facing both Sunni and Shi'i legal theory today.¹⁶⁰ Sunni law adopts fairly conservative perspectives, typically limiting legal canons to being tools only for describing Islamic law.¹⁶¹ But one scholar rightly concluded that the descriptive view of legal canons was not a necessary feature of Sunni law.

In Shi'i law, a more law-generative orientation towards legal canons is more widespread, as is the theology of broad delegation to permit wide scope for rational interpretations of law. As in Sunni law, legal canons have always been used to address novel questions and thereby construct Shi'i law. Contemporary jurists simply now acknowledge that fact. For example, Nasir Makarim Shlrazl insists that legal canons ‘constitute methods of constructing legal rules in all subjects of law, and [that] substantive law is not just derived from, but also based on them’.¹⁶⁴ A state-backed committee convened in Iran to collect legal canons declared that jurisprudence itself can be conceived of as collecting legal canons for the purpose of ‘guiding jurists in the interpretive process for constructing [new] legal rulings in practical settings, where it is not enough to simply rely upon the [classical] legal ruling (hukm shari)’.¹⁶⁵ And Mustafa Muhaqqiq Damad argued that legal canons can serve as interpretive tools for discov­ering or, in modern parlance, legislating, new laws.¹⁶⁶

Scholars invested in both descriptive and prescriptive, or law-generative approaches to Islamic law have raised a series of questions about legal canons for theories of Islamic law. Consider, for example, the following questions:

(1) Are legal canons on past matters conclusive, or can (and should) jurists derive new legal canons to address modern circumstances or apply old principles to new realities?

(2) What were the areas of convergence or exchange in the context of legal canons in the development of Islamic law between Sunnis and Shi'is?

(3) Why did the field of Shi'i legal canons develop later than the field of Sunni legal canons, as a genre?¹⁶⁷

Answers to these questions provide valuable entry points to the study of legal canons in Islamic legal theory.

Finally, for both descriptive and normative appraisals of legal canons, it may be worth also considering what is missing from the existing classifications and studies. For instance, is there a new set of modern canons missing from the classical corpus of legal canons — beyond the categories I have tried to organized and detail above? Bujnurdl, for instance, identifies a justice canon (qa idat al-'addla), an ease canon (qa idat al-suhula) and a freedom canon (qd'idat al-huriyya) as principles ‘with medieval origins that are of increasing relevance to modern society, but for some reason are missing from the oeuvre of legal canons literature’.¹⁶⁸ Murtada Mutahharl complains that the failure to renew the canons corpus with attention to new canons has led to the ‘ossification of society-relevant deliberation amongst Muslim jurists’.¹⁶⁹ These schol­ars argue that further examining Islamic legal canons as principles for dynamic Islamic legal interpretation can facilitate new definitions and applications of Islamic law to better fit the changing contemporary world.¹⁷⁰

3.3 Comparative law and interpretation: three puzzles

In closing, it is worth noting the surprising convergence that has emerged over the past few decades among scholars of Islamic law and scholars of American law on the significance of legal canons to legal interpretation, and their use in the construction of both legal rules and institutions. Scholars in both systems see legal canons as a way to inform and perhaps reform the process of interpretation and the legal institutions that they help produce.

When comparing the two, there are several puzzles. One puzzle is whether they are comparable in the first place, given the different origins of each — one secular, the other religious.¹⁷¹ A related puzzle is whether and to what extent canons help judges and scholars not only interpret the law in very different constitutional structures but also allocate power to the varied institutions in each.¹⁷² A third puzzle — the ‘dueling canons’ problem — is one of the most interesting, and thus worth examining here more closely as an illustrative example of how comparative law might shed light on both systems.

The ‘dueling canons’ problem proceeds from the question whether canons guide or con­strain interpretation, or are instead conflicting principles that provide convenient tools in the hands of a wily judge intent on imposing his own preferences in the law. Perceiving legal canons on the latter view, some opponents in the American context have sought to excise them from courts on the claim that they are incoherent and inconsistent.¹⁷³ Most prominently, Karl Llewellyn initiated a realist attack on legal canons starting in the 1930s, on claims that canons were indeed tools for judges to impose their own preferences on the law. As evidence, he argued that, for every canon, there was a counter-canon. This fact, he argued, allowed judges to rely on virtually any canon to bolster their own preferences with a claim that they were constrained by the law when in fact they were not.¹⁷⁴

The realist attack stymied debate on the canons for years in the academy.¹⁷⁵ When debate did return in the 1990s, political scientists and behavioural economists took up the anti­canons mantle, seeing canons as contrary to the complex realities of legislation and interpre­tation and thus overly restrictive.¹⁷⁶

To be sure, the canons never fully disappeared from the courts,¹⁷⁷ and today, even in the academy, legal canons have recently come back with a vengeance. Among the voluminous scholarship on them, one pair of books stands out. The late Supreme Court Justice Antonin Scalia and Bryan Garner, author of Black's Law Dictionary, produced a handbook in 2012 called Reading Law. In it, they advise judges and scholars on how to interpret American law based en­tirely on a set of 57 legal canons. In response, Professor William Eskridge, a leading scholar of interpretation and legal canons, published his own handbook in 2016, called Interpreting Law. He describes rather than prescribes, but similarly organizes his work around legal canons and iden­tifies their outsized role in shaping American law — from the interpretation of legal texts to the structuring of legal institutions. These authors diverge in their conception of the authority del­egated to judges to interpret law, as faithful agents of the legislature or of the constitutional text.

In Islamic law, opponents to canons — who, like American textualists, promoted textual approaches to Islamic law — attacked legal canons, albeit on almost opposite grounds. Amer­ican proponents of canons tended to be textualists. But Muslim opponents of canons tended to be strict textualists, along with Salafi-traditionists and other ‘conservatives’ who advo­cate adherence to the texts of laws drawn only from Islam’s founding period. All of these groups share in a doctrine that stands against any ‘theology of delegation’ — whereby God, as supreme Legislator, delegates interpretive authority to humans over law.¹⁷⁸ Rejecting the notion of delegated interpretive authority, these groups require jurists to adhere to the plain meaning of the texts, even if doing so yields absurd or incoherent results. This stance against canons comes from their notice of the same problem of which Karl Llewellyn complained: that for every canon there was a countercanon.

Muslim canons-proponents responded that the idea of a ‘dueling canons’ problem in Is­lamic law was a false problem. Some canons were of general import and were qualified by more situation-specific canons — such as those allowing for exceptions on the grounds of necessity (dartdra) or some other relevant legal cause (qayd, 'illa mu'aththira).¹⁷⁹ This feature of legal canons is a matter of logic and induction, they say, which applies to law and for that matter to any field outside of law. If a scientist announces a general inductive rule that mammals move their lower jaw when chewing but observes that the rule does not apply to crocodiles, his observation does not invalidate the general rule. Rather the general statement elaborates a general principle that holds true in most general cases, even if exceptions can be found to qualify it in limited cases.¹⁸⁰

In short, Muslim canons-proponents argue that, for a legal canon to be valid and coherent does not require that it cover all cases. Instead, it requires that it be generally applicable in ordinary circumstances and that it apply with respect to the body of other legal canons and rulings, in a way that accords appropriate weight and hierarchy to each. So-called ‘dueling canons’ are not a matter of a competition between two equals, but they are a matter of proper categorization, hierarchical organization and prioritization of different canons as applied to a particular set of facts¹⁸¹ — which is a task for the astute jurist to organize. The goal is to do so with some measure of coherence and attention to justice or moral values, approximating what Ronald Dworkin has called law as integrity.¹⁸²

The literature on Islamic legal canons has elaborated lengthy discussions on the priority of legal canons in response to the ‘dueling canons’ problem, and in this respect may have key insights to inform or compare with American scholarship on legal canons. All said, both traditions of legal canons deserve further study.

Notes

1 S ee, e.g., Ya'qub b. 'Abd al-Wahhab Ba Husayn, al-Qawd'id, al-fiqhiyya: al-Mabadi', al-muqawwimdt, al-masadir, al-daldiyya, al-tatawwur (Riyadh: Maktabat al-Rushd, 1998), 22: al-amr al-kulld yantabiq 'alayhi juz'iyydt kathdra tufham ahkamuha minha (quoting Taj al-Dln ibn al-Subkl).

2 F or a brief history, see my Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge: Cambridge University Press, 2015), 348—57.

3 F or instance, Sayyid Muhammad Hasan Bujnurdi, al-Qawa 'id al-fiqhiyya (Qum, Iran: al-Hadl, 1419/[1998]), 15.

4 S ee Rabb, Doubt in Islamic Law, 355 (‘scholars of Islamic legal maxims have yet to develop a com­prehensive understanding of the field as it operated historically or in modern times, nor have they categorized legal maxims in ways that take account of their full spread’).

5 F or further discussion of and references to the foundational sources in Sunni and Shi'i law, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd edn (Cambridge: Islamic Texts Society, 2003), 16—55, 58—60; Hossein Modarressi, An Introduction to Shi'i Law (London: Ithaca Press, 1984).

6 Roy Mottahedeh, Introduction to Lessons in Islamic Jurisprudence (Oxford: Oneworld, 2003), 1.

7 Qur’an, 5:1 (Ya ayyuha 'lladhina, amanu awfu bi-l-'uqud).

8 F or discussion, see, e.g., Muhammad Sidqi b. Ahmad al-Burnu, Mawsu'at al-qawd'id al-fiqhiyya (Beirut: n.p., 1416/[1995]), 1:38.

9 S ee Mecelle, art. 29 (la darar wa-la dirar). For brief discussion, see, for instance, Joseph Schacht, Origins of Muhammadan Jurisprudence (Oxford: Oxford University Press, 1950), 183 (doubting that the canon is a prophetic report); Subhl Mahmasani, Falsafat al-tashrd ' al-Islami, 5th edn (Beirut: Dar al-'Ilm li-l-Malayyin, 1980), 237—39; Makarim-Shlrazl, Qawd'id, 16, 25; Burnu, MawsWa, 1:32. Of the dozens of monographs on this widely cited canon, see, for example, Muhammad Baqir al-Sadr, La darar wa-la dirdr (Qum, Iran: Dar al-Sadiqin, 2000); 'All al-Husaynl al-Slstanl, Qd'idat la darar wa-la dirdr (Beirut: Dar al-Mu’arrikh al-'Arabi, 1994); Ihab Hamdl Ghayth, al-Qd'ida al-dhahabiyya fi al-mu amalat al-Isldmiyya: la darar wa-la dirdr 'inda al-Hafiz Ibn Rajab al-Hanbald (Cairo: Dar al-Kitab al-'Arabi, 1990).

10 See Burnu, Mawsu'a, 1:38—39 (al-muslimun 'indashurutihim, with references to the hadith literature).

11 See generally my Doubt in Islamic Law, esp. 4—5, with an introduction to the doubt canon.

12 Ibid.

13 Ibid., 48-66.

14 For a demonstration of the process of canonization and subsequent textualization, together with discussion of changing notions of Sunna, see my Doubt in Islamic Law, esp. 48-59, and ‘Islamic Legal Maxims as Substantive Canons of Construction: Hudid-Avoidance in Cases of Doubt,' Islamic Law and Society 17 (2010), 63-125.

15 See, e.g., Burnu, Mawsii 'a, 1:39 (la ijtihad ma "a al-nass); Mahmasani, Falsafat al-tashri ', 225-26 (la masagha li-l-ijtihad fl mawrid al-nass); Muhammad 'All Tashkiri et al. (eds), al-Qawa 'id, al-usuliyya wa-l-fiqhiyya (Qum, Iran: al-Lajna al-'Ilmiyya fi al-Hawza al-Diniyya bi-Qum, 2004), 425-75 (taqdim al-nass 'ala al-zahir and tahkim al-nass 'ala al-zahir).

16 Notably, juristic ‘consensus' differed from time to time and community to community. Often a matter of local or time-bound agreement, consensus canons sometimes converged across Sunni and Shi'i law (such as the no harm or plain meaning canons), but they often reflected the differing agreements of groups of Sunni jurists for Sunni law and of Shi'i jurists for Shi'i law. This is a matter worth elaborating elsewhere.

17 See Kamali, Jurisprudence, 469-500 (discussing, among other things, ijtihad as based on anal­ogy (qiyis) and inclusive of necessity (darura), presumptions of continuity (istishab), and ‘equity' (istihsan, istislah)). For a discussions of istihsan and other equitable principles as equity in Islamic law, see Sherman Jackson, ‘Literalism, Empiricism, and Induction: Apprehending and Concretiz­ing Islamic Law's Maqdsid Al-Shan 'ah in the Modern World', Michigan State Law Review (2006), 1476; Mohammad Fadel, ‘Istihsan is Nine-tenths of the Law: The Puzzling Relationship of Usul to Furii' in the Maliki Madhhab', Studies in Islamic Legal Theory, ed. Bernard Weiss (Leiden: Brill, 2002), 161-76. For a discussion on the varied functions of and meanings of ‘equity' historically and comparatively, and specifically of two such functions that align with my reference to medieval Islamic usage - namely ‘corrective' interpretation that goes beyond the declarative function of ordinary law and ‘moderating' rulings to mitigate the harshness of law - see Maria Jose Falcon y Tella, Equity and Law (Leiden: Brill, 2008), xix and passim.

18 This framework emerged in the 18th century in the usili-jurisprudential tradition of Murtada al-Ansari, which displaced akhbiri-textualism and now dominates Shi'i law. See Modarressi, Introduction to Shi '1 Law, 57-8. On the equitable features mentioned (usul 'amaliyya, slra 'uqalalyya and other amirit), see Muhammad Baqir al-Sadr, Lessons in Islamic Jurisprudence, trans. Roy Mot- tahedeh (Oxford: Oneworld Publications, 2003).

19 See Burnu, Mawsii'a, 1:40 (al- 'ida muhakkima [or muhakkama]), noting that the authoritativeness of custom similarly has many textual and extratextual sources, though no single text dictates it. He cites, as examples, Q. 7:199 (‘Pardon people and decide on the basis of custom, and turn away from ignorant people: khudhi al-' afwa wa-'mur bi-l- 'urfi wa-a 'rid 'an al-jahilin), Q. 4:19 (‘Deal with [people] according to customary norms: wa- 'ashiruhunna bi-l-ma'ruf’), and the hadith report, in Bukhari, said to apply to a woman seeking maintenance for a divorce (‘Take what suffices you and your son according to customary norms'). See also Khaleel Mohammad, ‘The Islamic Law Maxims', Islamic Studies 44 (2005), 206-7; Mohammad Hashim Kamali, ‘Legal Maxims and Other Genres of Literature in Islamic Jurisprudence', Arab Law Quarterly 20 (2006), 87-90; Mahmasani, Falsafat al-tashri', 261-72.

20 See Burnu, Mawsii'a, 1:40-1 (i'mil al-kalim awla min ihmalih); Mahmasani, Falsafat al-tashri', 233 (same). Bui rnui makes this canon, rather exceptionally, a universal legal canon, noting that it has no single textual source but that it resonates with Q. 50:18 (ma yalfizu min qawlin illa ladayhi raqibun 'atid), and the hadith report (inna Allah ta'ala 'inda kull lisan qall: fa-l-yattiqi Allaha 'abd wa-l-yanzur ma yaqul).

21 See Burnu, Mawsu 'a, 1:43, 3:133 (noting that the canon was reported as a part of a hadith as included in the collections of all six canonical Sunni hadith collectors: Bukhari, Muslim, Abu Dawud, Tirmidhi, Nasa ’i, and Ibn Majah); cf Makarim-Shirazi, Qawa 'id, 18-19. For discussion, see Mahmasani, Falsafat al-tashri', 329-34; Bujnurdi, Qawa'id, 3:69-108; Mustafa Ahmad Zarqa, Sharh. al-qawa— 'id al-fiqhiyya, ed. 'Abd al-Satta r Abu Ghudda (Damascus: Dar al-Qalam, 1989) [see p 254 for correct accents] 400-1; Ahmad al-Zarqa’, Sharh al-qawa'id al-fiqhiyya (Beirut: Dar al-Gharb al-Islami, 1983), 304-22.

22 See my Doubt in Islamic Law, 48-66.

23 Ibid., 69-132.

24 Ibid., 89-90.

25 Abu Yusuf Ya'qub b. Ibrahim, Kitib al-kharaj, ed. Muhammad Ibrahim al-Banna’ (Cairo: Dar al-Isliah, 1981), 303-5.

See my Doubt in Islamic Law, 49—66 (tracing the canonization, textualization and generalized interpretation of the doubt canon); and my ‘Islamic Legal Maxims as Substantive Canons of Construction', 63—125 (describing the transformation of the doubt canon into a prophetic hadith). See generally my Doubt in Islamic Law.

See Burnu, Mawsua, 1:68—9 (surmising that Hanafis preceded others schools in the articulation of legal canons because of the expansive nature of their substantive law rulings, based on the rational principles that their founders articulated in their interpretations of law — for which they were often lambasted by subsequent Shafi'is).

See Burnu, Mawsua, 1:56 (citing Kitab al-Asl: kull amr la yahill illa bi-milk aw nikah fa-innahu la yuharram bi-shay’ hatta yunqad al-nikah wa-l-milk).

See, e.g., Mahmasani, Falsafat al-tashra', 220 (discussing al-asl al-ibaha); Makarim-Shirazi, Qawa'id, 22 (same); Kamali, ‘Legal Maxims', 84 (al-aslfa al-ashya’ al-ibaha). This canon applies to non-ritual law and non-personal status law, but not, typically, to rituals and matters of sexual ethics (for which the presumption was flipped). For further discussion, see below, note 100.

See Burnu, Mawsu'a, 1:52 (citing Kitab al-Kharaj: al-Ta'zir ila al-imam Imam 'ala qadr 'azm al-jurm wa-sigharih).

Ibid.

Burnu, Mawsu'a, 1:56 (describing the use of legal canons to provide summary rationales for par­ticular rulings and observing that: ‘It is clear that this method of giving rationales [for rulings] is closest to what then became the process of designating canons that are found in the early centu­ries'). On the distinction between standards and rules (and between principles and policies), see the famous essay by Ronald Dworkin, ‘The Model of Rules', University of Chicago Law Review 35 (1967), 22—3 and passim.

Cf William N. Eskridge, Jr, Interpreting Law: A Primer of How to Read Statutes and the Constitution (St Paul, MN: Foundation Press, 2016), 12 (defining governance canons as principles that, in American law, ‘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'). For further discussion, see below, note 111 and accompanying text.

For a detailed account for Sunni law, see Burnu, Mawsu'a, 1:50—65.

For discussion, see Mustafa Muhaqqiq Damad, ‘Codification of Islamic Juridical Principles,' Hikmat 1 (1995), 98 (observing that ‘many of the general principles mentioned in Sunni sources, are found, in an identical form, in the traditions transmitted from the Imams of Imami [Twelver] Shi'ism, some of which are narrated from the Prophet (s) himself and some others drawn from the direct teachings of the Imiams'.).

For an rich and critical discussion of these possibilities for the judiciary generally with reference to papyrological and literary-historical sources (though not with specific comment on legal canons that emerged from them), see Mathieu Tillier, L’Invention du cadi: La justice des Musulmans, des juifs et des Chretiens aux premiers siecles de l'Islam (Paris: Sorbonne, 2017), 14—18; idem, Les Cadis d'Iraq et l'etat Abbasside (132/750-334/945) (Damascus: IFPO, 2009), 64-83.

Both Ignaz Goldziher and Joseph Schacht, early on in Western studies of Islamic law, identified the canon al-walad li-l-firash as the Arabic-Islamic version of the corresponding Roman law rule. See Ignaz Goldziher, Muslim Studies, trans. C. R. Barber and S. M. Stern (New Brunswick, NJ: Aldine, 2006), 1:164-90; Schacht, The Origins of Muhammadan Jurisprudence, 181-2; idem, ‘Foreign Elements in Islamic Law', Journal of Comparative Legislation and International Law 32 (1950), 135.

I have previously used this term, ‘legal maxims', and it seems the preferred term among the handful of historians writing on the subject in English - perhaps drawing from Schacht, himself perhaps drawing from the common name for the Roman law principles of this type. However, an extensive and growing literature of theories of interpretation developed in American law over the past few decades elaborate on the notions of ‘canons of construction' or simply ‘legal canons' as an entire field of interpretation, and has convinced me that these terms more accurately reflect the concep­tual Islamic law analogs to qawa'idfiqhiyya in contemporary English legal usage and theory. For discussion among some of the leading theorists of interpretation and legal canons, see the various works by William Eskridge, Abbe Gluck, Anita Krishnakumar, Karl Llewellyn, John Manning and the late Justice Antonin Scalia, among others, cited below in notes 150-5 and passim.

Schacht, ‘Foreign Elements', 135. See also Patricia Crone, Roman, Provincial and Islamic Law (Cam­bridge: Cambridge University Press, 1987), 10 n. 96 (relying on Schacht).

See Crone, Roman, Provincial and Islamic Law, 9-11 (arguing that if rhetors transmitted Roman knowledge, they likely did not convey legal principles as they were concerned more with argumentation than law, but nevertheless asserting that the early Arab-Islamic patronage system called wala’ had origins in Roman law); see also Harald Motzki, ‘The Musannaf of 'Abd al-Razzaq al-Sanam as a Source of Authentic Ahadath of the First Century A.H.’, Journal of Near Eastern Studies 50 (1991), 19 (citing Patricia Crone, with agreement).

See Motzki, ‘The Musannaf of 'Abd al-Razzaq al-San'ani’, 19 (suggesting that the pre-Islamic attribution to Aktham b. Sayfi is anachronistic and thus false, and that the Jewish law correlation is not proven); see also Uri Rubin, Al-Walad li-al-firash’, Studia Islamica 78 (1993), 5—26 (tracing the history of the canon as a non-prophetic, possibly pre-Islamic, statement later back-attributed to the Prophet).

See Motzki, ‘The Musannaf of 'Abd al-Razzaq al-San'ani’, 19.

On practices of physiognomy, using certain physical features to determine paternity, see Ron Shaham, The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law (Chicago: Chicago University Press, 2010).

See Motzki, ‘The Musannaf of 'Abd al-Razzaq al-San'ani’, 19; Wael Hallaq, Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 19—25.

See, e.g., Mathieu Tillier, Les Cadis d 'Iraq et l’etat Abbasside (132/750—334/945) (Damascus: Institut Fran^ais du Proche-Orient, 2009), 64-83.

For discussion, see Mahmasani, Falsafat al-tashra', 261-72 (on the canon, al- 'Tda muhakkima [or muhak- kama], and tahkam al-'ada). See also Heinrichs, ‘Kawa'id Fikhiyya,’ EI², ed. P. Bearman, T. Bianquis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Brill, 2008); Kamali, ‘Legal Maxims’, 87-90; Bdrm, Mawsu'a, 1:40; Mohammad, ‘Islamic Law Maxims’, 194, 206-7 (defining the term ‘muhak- kama’ to signify that custom has persuasive rather than determinative or binding authority).

For suggestions to this effect, see Hallaq, Origins and Evolution of Islamic Law, 8-28 (for Near Eastern Law); Crone, Roman Provincial and Islamic Law (for Roman Law); Mahmasani, Falsafat al-tashra', 272-87 (for Roman law, Jewish law, and tribal and other local customs in Near Eastern conquered lands).

For a discussion of and reference to literature detailing the distinctions between these categories and functions of legal canons in American legal theory, see my ‘The Appellate Rule of Lenity’, Harvard Law Review Forum 131 (2018), 192. Compare William N. Eskridge, Jr, Philip P. Frickey and Elizabeth Garrett, Cases and Materials on Legislation, 3rd edn (St Paul, MN: Foundation Press, 2001), 850-1.

The history of Islamic legal canons unfolded over a series of stages. For discussion, see my forth­coming article, ‘Interpreting Islamic Law’, discussing these stages as follows: (1) the early found­ing period, when judges and jurists regularly deployed canons in the construction of Islamic law (7th-10th centuries); (2) the late founding period, when jurists recorded these canons in treatises devoted exclusively to them (10th-11th centuries); (3) a period of Sunni expansion and elabora­tion of legal canons treatises (12th-mid-13th centuries); (4) the golden age of rapid expansion of legal canons literature (mid-13th-16th centuries); (5) a period of Sunni decline, which accompa­nied a wave of codification and constitutionalization (17th-19th centuries); (6) a period of Shi'i debate and reemergence (17th-19th centuries); and (7) the modern period of state decline but juristic resurgence (20th century to the present).

See, Burma, Mawsa 'a, 1:32-5, dividing legal canons along three different axes: (1) according to their degree of generality or specificity - into universal legal canons: al-qawa'id al-kulliyya al-kubra, general legal canons: al-qawa'id al-fiqhiyya [al-aghlabiyya] or majoritarian, specific legal canons: dawabit (pp. 32-5); (2) according to their relationship to the other two principal legal genres - into interpretive legal canons: qawa'id usuliyya and substantive legal canons: qawa'idfiqhiyya (pp. 25-8); and (3) according to their known sources - into textual sources (Qur’an and hadith, pp. 36-9), interpretive sources that rely on the interpretive sources (ijma' and legal reasoning, pp. 39-40), and interpretive sources derived from induction or general legal reasoning (pp. 40-1). The above text simplifies these divisions.

For example, Nasir Makarim Shirazi divides legal canons according to their scope of application into universal and general legal canons (whereas the specific canons, dawabit, may not be canons at all in his view). He notes that all canons either apply to some subjects in substantive law, such as the ‘the canon on liability and non-liability: qa 'idat ma yudman wa-ma la yudman, which applies to property and commercial law; or they apply to specific subjects of law that might encompass all fiqh chapters, such as the canon of ‘no harm: qa 'idat la darar. Makarim-Shirazi, Qawa 'id, 23-4. He further divides legal canons by subject matter: (1) general canons (al-qawa 'id al- 'amma) that are non-subject matter-specific; (2) specific transactional law canons (related to a specific subject within muamalat); (3) specific ritual law canons (related to a specific subject of 'ibadat); (4) general transactional law canons (related to muamalat, generally construed); and (5) evidentiary and pro­cedural canons (used to connect real world rulings with an Islamic legal basis, such as the canon stipulating the probativity of the claim of a person in possession of property with disputed owner­ship: hujjiyyat qawl dhi al-yad). Ibid., 26—7. Still others see some of these classifications, for example, dividing qawa'id from dawibit based on scope of application as unique to Sunni law or as ‘modern innovations’ that cut against classical treatments. In that vein, the Committee for the Study of Legal Canons in Iran concluded that a qa' ida is the same as a dabit. See Lajnat 'Ilmiyya fi al-Hawza al-Diniyya bi-Qum, al-Qawa"id al-usUliyya wa-l-fiqhiyya, ed. Muhammad Ali al-Tashkiri et al. (Qum: al-Majma' al-'Alami li-Taqrib Bayna al-Madhahib al-Islamiyya, 1425/2004), 1:8.

53 For a comparable division of American legal canons into categories of substantive, textual and reference canons, and for the leading textualist and dynamic treatments of them, see respectively, Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St Paul, MN: Thompson/West, 2012); Eskridge, Interpreting Law.

54 Elsewhere, I provided a preliminary outline following the earlier attempts, on which the current assessment expands for a more robust treatment. See my Doubt in Islamic Law, Appendix 3 (ju­risprudential canons, substantive canons and ‘other’ canons). Tracking the areas of law to which a canon applies has several advantages: it tracks the classical bi-partite treatment of canons, it adds new categories introduced by evolving statutory interpretation theory to identify previously unrecognized categories and functions of early Islamic legal canons, and it thereby renders both fields comparable to one another to aid in further study along lines of theory or application.

55 For comparative purposes, see the definition of substantive canons in American law in Eskridge, ‘The New Textualism’ and Normative Canons,” Columbia Law Review 113 (2013), 537 (‘Substan­tive canons are presumptions, clear statement rules, or even super-strong clear statement rules that reflect judicial value judgements drawn from the common law and from constitutional law (created by judges), as well as from statutes themselves (as understood and interpreted by judges)’).

56 With some exceptions. For example, the early Shafi'i scholar of legal canons, Qadi Husayn, counted only four canons as universal: all but the fifth canon on intention, which was apparently added later. See Mahmasani, Falsafat al-Tashri', 327 (citing Taj al-Din al-Subki, in Banna’i’s Sharh and Hdshiya to Subki’s Jam' al-jawami", 2:383). Ibn Nujaym on the other hand emphasized a second intention canon as his sixth. See Kamali, ‘Legal Maxims’, 94 (adding ‘no spiritual reward accrues without intention: la thawab illa bi-l-niyyaj. Burnu considers a sixth canon against superfluity to be universal: ‘giving effect to text is preferable to regarding it as superfluous: i 'mal al-kalam awla min ihmalih’. See Burnu, Qawa'id, 1:40—1.

57 See, for example, Abu 'Abd Allah Muhammad b. Muhammad al-Maqqari, Qawa'id, ed. Ah­mad b. 'Abd Allah b. Hamid (Mecca, Saudi Arabia: Jami'at Umm al-Qura, n.d.), 198-212; al- Fadil al-Miqdad al-Suyflri, Nadd, al-qawa'id al-fiqhiyya 'ala madhhab al-Imamiyya, ed. 'Abd al-Latif al-Kui hkamarii Mahmuid al-Mar'ashii (Qum, Iran: Maktabat Aⁱ yat Alliah al-'Uzmia al-Mar'ashii, 1403/1982-3), 90-114; Ibn Nujaym, al-Ashbah wa-l-naza’ir, ed. Muhammad Muti' al-Hafiz (Da­mascus: Dar al-Fikr, 1983), 1:17-19; Muhammad al-Husayn /Al Kashif al-Ghha’, Tahrir al-Majalla, ed. Mu hammad Mahdii al-Aⁱ sifii and Muhammad al-Sai'idii (Qum, Iran: al-Majma' al-'Aⁱ lamii li-l- Taqrib Bayna al-Madhahib al-Islamiyya, 1422/2001-2), 1:129-32, 139-42, 153-6 (critical com­mentary on Mecelle articles 2, 4, 17, 19 and 36). For other divisions, see, for example, Jalial al-Diin al-Suyuti, al-Ashbah wa-l-nazTir, ed. Muhammad al-Mu'tasim bi’llah al-Baghdadi (Beirut: Dar al-Kitab al-'Arabi, 1998), 35, 201, 299, 337; Makarim-Shirazi, al-Qawa'id al-fiqhiyya, 1:26-7.

58 For recent works on maqasid, see M. Khalid Masud, Islamic Legal Philosophy: A Study of Abu Ishaq al-Shatibi's Life and Thought (Delhi, India: International Islamic Publishers, 1989), Jasser Auda, Maqasid al-Shari'ah as Philosophy of Islamic Law: A Systems Approach (London: The International Institute of Islamic Thought, 2008); Idris Nassery et al., eds., The Objectives of Islamic Law: The Promises and Challenges of the Maqasid al-Shari 'a (Lanham, MD: Lexington Books, 2018).

59 For example, one author categorizes legal canons as ‘part of the maqaa sid genre’. Mohammed, ‘Islamic Law Maxims’, 194. In my view, this categorization does not accord with their historical treatment.

60 For discussion, see my ‘The Islamic Rule of Lenity: Judicial Discretion and Legal Canons,’ Van­derbilt Journal of Transnational Law 44, no. 5 (2011): 1299-1351, 1331-33.

61 See Mahmasani, Falsafat al-Tashri', 219; /Al Kashif al-Ghita’, Tahrir al-Majalla, 1:122-3.

62 For a similar assessment with respect to modern debates in Islamic law, see Jackson, ‘Maqasid Al- Shari 'ah in the Modern World’, 1476.

63 For discussion of the ways in which some contemporary Muslim scholars and political leaders reference the maqasid as broad-based ethical tools for law reform, see David L. Johnson, ‘Maqasid al-Shari'ah: Epistemology and Hermeneutics of Muslim Theologies and Human Rights,' Die Welt des Islams 47 (2007), 149-87.

64 See Mahmasani, Falsafat al-Tashri‘, 219-20 (adding ‘avoiding harm' to this short formulation in noting that all five universal objectives are founded on the principle of maximizing benefit and avoiding harm: mabniyya 'ala jalb al-manafi' li-l-nas wa-dar’ al-mafasid) (citing, among others, Ibn al-Qayyim: ‘Shari‘ah is based on hikam and masalih al-'ibad in this life and the next. It is all aimed at justice, mercy, wisdom. Every matter that diverges from justice to oppression or from mercy to its opposite or from benefit to harm, or from wisdom to 'abath, is not Shari‘ah, even if it is called Shari‘ah by interpretation (wa-in udkhilat fiha bi-l-ta’wil). Shari‘ah is the justice of God between people, his mercy between people'). Most interpretation-minded jurists agreed on this point, though strict textualists, such as Zahiri jurists, rejected it and other canons or principles. For further discussion, see al-‘Izz Ibn ‘Abd al-Salam (d. 660/1262), al-Qawa‘id al-kubra (also called Qawa‘id al-ahkam fi masalih al-anam, ed. Nazih Kamal Hammad and ‘Uthman Jumu‘a Dumayriyya (Damascus: Dar al-Qalam, 2000), 1:5-6 and passim (iden­tifying Islamic law's overarching purpose as: tahqiq masalih al-‘ibad); cf Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari‘ah in the Modern Age (London: Rowman and Littlefield, 2014),xxxxii.

65 No one has counted the canons in the various schools. Khaleel Mohammad says they are in the hundreds (‘Islamic Law Maxims', 192), and the literature suggests that a combined count would be much more. For example, the Hanafi jurist DabusI (d. 430/1039) had already listed 86 in his Ta’sis al-nazar in the 11th century; the later Hanafi jurist Ibn Hamza al-Husayni (d. 1305/1887) listed 251 in his Fara’id al-bahiyya. The jurist ‘Abd al-Wahhab al-Baghdadi (d. 476/1083) in his al-Majmii' wa-l-furaq discussed 96; Imami scholar Muhammad Kazim al-Mustafawi in his al- Qawa'id: mi ’at qa'idafiqhiyya ma nan wa-madrakan wa-mawridan lists hundreds. Moreover, the recent compendia collecting legal canons are multi-volume works collecting from dozens to thousands of canons each. See, for example, Burnu, Mawsu'a (13 vols, with 3,250 unique canons); Tashkiri et al. (3 vols., with 290 canons), Qawa'id (9 vols); Bujndrdi, al-Qawa‘id al-fiqhiyya (7 volumes, with 63 canons).

66 See Tashkiri et al., Qawa'id, 11-12 (qa'idat al-faragh: kull salat aw 'amal shukkafa sihhatih bad al- faragh minhu fa-huwa mahkum bi-l-sihha).

67 Bujnurdi, Qawa'id, 4:189 (al-shart al-fasid laysa bi-mufsid li-l-'aqd).

68 Burnu, Mawsu'a, 38 (kull muskir haram). See also Bujnurdi, Qawa'id, 5:307 (kull muskir ma’i' bi-l- asalafa-huwa najis).

69 Burnu, Mawsu'a, 58 (kull shay’ kuriha akluh wa-l-intifa' bih 'ala wajhin min al-wujuh, fa-shira’uh wa- bay'uh makruh...).

70 On these categories from jurisprudence and the relationship between law and religion in Islamic contexts, see Mottahedeh, Lessons in Islamic Jurisprudence, 2-4, 25-7.

71 Usul has many meanings and has evolved over time. Aside from using usul to signify the sources or methods of Islamic jurisprudence, as in usul al-fiqh, early Muslim jurists used the term to re­fer to what later jurists labelled qawa'id, dawabit, ahkam and other presumptions of law or even theology. The best example is the list of varied sayings called usul in Abu al-Hasan al-Karkhi's Usul, published in Ta’sis al-nazar by Abu Zayd al-Dabusi, ed. Mustafa Muhammad al-Qabbani al-Dimashqi (Beirut: Dar Ibn Zaydun, n.d.). Karkhi's book has recently been translated by Munir Ahmad Mughal in Islamic Legal Maxims: Consisting of Al-Karkhi's Al-‘Usul (n.p., Istinarah Press, 1438/2017), 61-91 (to be used with caution). In addition, contemporary Shi‘i jurists use the term to mean ‘procedural principles' or ‘presumptions'. The most prominent elaboration of this sense of usul appears in Muhammad Baqir al-Sadr's Durusfi 'ilm al-usul, published in English by Roy Mottahedeh as Lessons in Islamic Jurisprudence (Oxford: Oneworld Publications, 2003). I include the term in this header in the latter sense.

72 Ba Husayn, Qawa'id, 63-4 (defining dawabitfiqhiyya).

73 See above, notes 38-45, and accompanying text.

74 For contrasting studies on the origins of the paternity canon, see Schacht, Origins of Muhammadan Jurisprudence, 181-8 (arguing that the paternity canon originated with Roman law and transferred to the Iraqis before Islam's advent or else in the second/eighth century, and that it was introduced as a hadith in the generation preceding Ibrahim b. Sa‘d (a contemporary of Malik (d. 179/795)), who was responsible for putting the canon in the form of a hadith report); Harald Motzki, Hadith: Origins and Developments (London: Ashgate, 2004), xlv (offering a general overview); Harald Motzki, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools, trans. Marion Katz (Leiden: Brill, 2001), 91, 125—7 (noting that several early jurists quoted the canon as an early legal opinion or a prophetic dictum, including Ibn Jurayj quoting 'Ata’, Malik in his Muwatta, and 'Abd al-Razzaq in his Musannaf while acknowledging that it may also have been in pre-Islamic usage by the judge Aktham b. Sayfi); Motzki, ‘The Musannaf of'Abd al-Razzaq al-Sanam’, 18. For additional origins studies of this canon, see Crone, Roman, Provincial and Islamic Law, 10, 96ff; G. H. A. Juynboll, ‘Some Notes on Islam’s First Fuquhad [sic] Distilled from Early Hadlth Literature’, Arabica 39 (1992), 287—314; Uri Rubin, ‘Al-Walad li al-firish,’ Studia Islamica 78 (1993), 5—26; Ella Landau-Tasseron, ‘Adoption, Acknowledgement of Paternity and False Genealogical Claims in Arabian and Islamic societies’, Bulletin of School of Oriental and African Studies 66 (2003), 176—80.

Among Sunni jurists, including late Hanafis, see Mahmasani, Falsafat al-tashri', 223—4; for Shi'i jurists, see Bujnurdi, Qawa'id, 1:135.

See Mahmasani, Falsafat al-tashri", 223.

See Harald Motzki, ‘Wal-muhsanatu mina n-nis’i illa ma malakat aimanukum (Koran 4:24) und die koranische Sexualethik’, Der Islam, 63 (1986), 192—218. See also my Doubt in Islamic Law, 50—1 n. 6,151-52 n. 78.

Muhammad b. Khalaf b. Hayyan Waki', Akhbar al-qudat, ed. Sa'id Muhammad al-Lahham (Bei­rut: 'Alam al-Kutub, 2001), 382: bay" al-ama talaquha.

Waki', Akhbar al-qudat, 468: al-nikah bi-yad al-sayyid, wa-l-talaq bi-yad al-"abd.

See generally Ba Husayn, Qawa'id.

See Bujnurdi, al-Qawi"id al-fiqhiyya, 135 (explaining that interpretive canons are for the mujtahid rather than the muqallid).

On ‘ordinary meaning’ and ‘objectified intent’ in American law, see Scalia and Garner, Reading Law, 69-77 (defining the ‘ordinary-meaning canon’ as follows: ‘Words are to be understood in their ordinary, everyday meanings - unless the context indicates that they bear a technical sense’); John Manning, ‘Textualism and Legislative Intent’, Virginia Law Review 91 (2005), 424 (defining ‘objectified intent’ as the ‘import that a reasonable person conversant with applicable social and linguistic conventions would attach to the enacted words’ that textualists typically apply); Ryan D. Doerfler, ‘Who Cares How Congress Really Works’, Duke Law Journal 66 (2017), 983 (build­ing on notions of objectified intent through analyses in linguistic philosophy with emphasis on context as information salient to both author and audience).

For discussion, see, e.g., Tashkiri et al., Qawa'id, 28-31 (thubut al-haqiqa al-shariyya: presumption of literal meaning in Islamic law), 32-4 (al-mushtaqq haqiqafi al-multabis wa-majaz fi ghayrih: deriv­ative words are to be taken literally when in doubt about their meaning, and otherwise [they are to be taken] figuratively [as appropriate]), 38-42 ("alamat al-haqaqa: indications of literal meaning), 42 (asalat al-zuhar: presumption of apparent or prima facie meaning).

See Mecelle, art. 36 (al-"ida muhakkima [or muhakkama]) (discussed, for instance, in Kamali, ‘Legal Maxims’, 87-8).

Mecelle, art. 40 (al-haqiqatu tutrak bi-dalalat al-'ada); art. 43 (al-manf "urfan ka-l-mashrut shartan). For discussion, see, e.g., Khaleel, ‘Islamic Law Maxims’, 89-90; Kamali, ‘Legal Maxims’, 88-9.

See Khaleel, ‘Islamic Law Maxims’, 89-90; Kamali, ‘Jurisprudence’, 373.

Kamali, ‘Legal Maxims’, 88-9.

In the vast usual al-fiqh literature specifying grammatical rules of interpretation, among other rules, two notable examples that address Sunni and Shi'i law, respectively, and that are available in English are Bernard Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (Salt Lake City: University of Utah, 1992) (a translation and exposition of Sayf al- Din al-Amidi’s al-Ihkam fi usal al-ahkam); Mottahedeh, Lessons in Islamic Jurisprudence (a translation and commentary on Muhammad Baqir al-Sadr’s, Duriisfi "ilm al-usul).

See, e.g., Burnu, Mawsii'a, 39 (la ijtihad maa al-nass); Mahmasani, Falsafat al-tashri", 225-26 (la masagha li-l-ijtihad fi mawrid al-nass); Tashkiri et al., Qawa'id, 425-75 (section on: taqdim al-nass "ala al-zihir; tahkim al-nass "ala al-zahir); Kamali, ‘Legal Maxims,’ 81 (‘ijtihad does not apply in the presence of nass [text]’).

Many canons on custom relate to the universal canon regarding it: ‘custom has legal authority: al- "ida muhakkima [or muhakkama]’ (Mecelle, art. 36). For discussion of subsidiary canons, see Kamali, ‘Legal Maxims,’ 88-89: ‘what is determined by custom is tantamount to a contractual stipulation: al-marif "urfan ka-l-mashrut shartan (Mecelle, art. 43).

Burnu, Maws i a, 28 (al-ijtihad la yunqad bi-mithlih).

On the primacy of divine legislative supremacy in Islamic law, see my Doubt in Islamic Law, 104—14; idem, ‘The Islamic Rule of Lenity', 1316—23.

See Mahmasani, Falsafat al-tashra", 233.

Ibid., 222 (citing Mecelle, arts. 37 and 39, respectively: isti"mal al-nas hujja yajib al-'amal biha and la yunkar taghayyur al-ahkam bi-taghayyur al-azman, and the papers of the Preparatory Committee for the Mecelle stating that that ‘changes over time change legal rulings, requiring that [new rulings] be based on "uf [custom] and "ada [practice]').

In fact, one Shi'i jurist has suggested that early accommodation for analogical reasoning and equi­table principles facilitated the development of the field of legal canons in Sunni law much earlier than Shi'i law. Bujnurdi, al-Qawa"id al-fiqhiyya, 9.

Mahmasani, Falsafat al-tashra", 235. See Mecelle, art. 36 (al-"ada muhakkima [or muhakkama]) (cited above, note 74), art. 39 (la yunkar taghayyur al-ahkam bi-taghayyur al-azman) (cited above, note 77). See Qur’an 9:60 (fuqara\ masakan, "amilan "alayha, mu allafat qulubuhim, fa al-riqab, ghariman, fa sabal Allah, ibn al-sabal).

Mahmasani, Falsafat al-tashra", 227—8 (discussing divergent opinions among various schools on this notion).

Ibid., 235—6 (citing Abia Yusuf, Kitab al-Kharaj, 46).

See, e.g., ibid., 219—20 (citing Asnawi, Sharh al-Manahij, 3:108: al-asl fa al-manafi" al-ibaha wa-fa al-mafasid al-man (the principle in matters of benefit is permissibility and in harm prohibition)); Khaleel, ‘Islamic Law Maxims', 202 (discussing al-asl bara’at al-dhimma and al-aslfa al-abda" al- tahram); Kamali, ‘Legal Maxims', 84.

For an introduction, see Sadr, Duras fa "ilm al-usul, in Mottahedeh (trans.), Lessons in Islamic Ju­risprudence, 119—33, 165—9. See also Tashkiri et al., Qawa'id, 351—424 (discussing 11 procedural presumptions).

See, e.g., Makarim-Shirazi, Qawa'id, 52. He also notes (p. 22) the differences between ju­risprudential subjects and legal canons subjects — and that discussions of hujjiyyat al-istishab fa ’-l-shubahat al-mawda"iyya or al-bara a or wa’l-ihtiyat al-jariyatan faha are the latter because they yield individual rulings and obligations (ahkaa m and waza if shakhsiyya), not general principles for deriving them.

See Hossein Modarressi, Theology of Delegation, Lecture at Yale Law School (unpublished remarks) (7 April 2015).

For discussion in the context of Shi'i ‘dueling theories of delegation and interpretation', see my Doubt in Islamic Law, 260—315, and on the partial-Hanbali and Zahiri rejection of legal canons, see ibid., 229—59.

For further discussion, see above, note 103, and my ‘Islamic Rule of Lenity,' 1315—23.

Mecelle, art. 76: al-bayyina "ala al-mudda"a wa-l-yaman "ala man ankar.

Ibid., art. 69: al-khitab ka’l-kitab. For discussion, see, e.g., Mahmasani, Falsafat al-tashra", 328—9.

Mecelle, art. 5: al-asl baqa’ ma kana "ala ma kana.

Ibid., art. 10: ma thabata bi-zaman yuhkam bi-baqalh ma lam yujad dalal "ala khilafih.

See Mahmasani, Falsafat al-tashra", 329: al-qadam yutrak "ala qidamih (citing Mecelle, art. 6) and al-asl anna ma kana qadaman yutrak "ala halih wa-la yughayyar illa bi-hujja (explaining that this canon func­tions as a tie-breaker in favour of the pre-existing legal status when competing claimants provide evidence of a new status and a preexisting status that are equally probative; and further specifying that claims of legal change must be unassailable).

Mecelle, art. 7: al-darar la yakun qadaman.

For an argument that judges exhibit a tendency to value continuity over change, as observes in American law, see David L. Shapiro, ‘Continuity and Change in Statutory Interpretation,' New York University Law Review 67 (1992): 921-60.

Burnu, MawsTa, 57 (kull man lahu haqqfa-huwa lahu "ala halih hatta ya’tah al-yaqan "ala khilaf dhalik). See my Doubt in Islamic Law, 135-225.

Mahmasani, Falsafat al-tashra", 349: yuqbal qawl al-mutarjim mutlaqan (citing Mecelle, art. 71; Ibn Nujaym, Ashbaa h, 51).

Mahmasani, Falsafat al-Tashra", 351: idha "alima al-hakim sidq al-shahid al-wahid, yajuz lah an yahkum bih (citing Ibn al-Qayyim, Turuq, 72, 75-8; Abui Daiwuid, Sunan, 3:308, no. 3607).

Mecelle, art. 1140: al-amaa ra al-baa ligha ahad asbaa b al-hukm. For further discussion of the use of cir­cumstantial evidence, see Hossein Modarressi, ‘Circumstantial Evidence in the Administration of Islamic Justice', in Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (Cambridge, MA: ILSP/Harvard University Press, 2017), 23-46.

Mahmasani, Falsafat al-tashrd', 373. See also Mecelle, art. 1140—1.

See Rabb, Doubt in Islamic Law, 1—2.

See Modarressi, ‘Circumstantial Evidence', 18—19. For further discussion of and restrictions on this canon, especially among later Sunni jurists, see Baber Johansen, ‘Signs as Evidence: The Doctrine of Ibn Taymiyya (1263—1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof', Islamic Law and Society 9, no. 2 (2002), 175—6; Intisar A. Rabb, ‘The Curious Case of Bughaybigha', in Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Balbale (Cambridge, MA: ILSP/Harvard University Press, 2017), 42-3.

Mecelle, art. 80: La hujja ma a al-tanaqud.

See Mahmasani, Falsafat al-tashrd', 376 (citing Mecelle, art. 80, and noting that if a judge issues a judgment on the basis of the initial testimony before retraction, the two witnesses are liable for any harm or damages caused).

See ibid., 376. Note that this approach was not universal. For example, Malikis and others ac­cepted various types of circumstantial evidence, including pregnancy as conclusive evidence of an unmarried woman having committed a sex crime, and drunkenness or the smell of alcohol on the breath as sufficient evidence to establish the crime of drinking. See ibid., 374-5; Rabb, Doubt in Islamic Law, 115-17, 159, 251.

See section 2.2 ‘Interpretive canons', above pages 231-34.

Waki', Akhbdr al-qudat, 87: la yu'addd Muslim dam kafir.

Ibid., 481 (contested canon).

For discussion of evidentiary disparities between men and women's court testimony, see Moham­mad Fadel, ‘Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought', International Journal of Middle East Studies 29 (1997), 185-204.

Waki', Akhbdr al-qudat, 210: laysa bayn al-'abdd qisas.

Ibid., 116: aqdldd dhawd al-hayait zallatihim. For discussion, see my Doubt in Islamic Law, 79-88, 97-8.

For general discussion of the phenomenon (albeit without explicit reference to legal canons), see, for instance, Tillier, Les Cadis d'Iraq, 138-86.

See Eskridge, Interpreting Law, 12.

See Bui r nui, 1:52-53.

Burnu, 1:52.

Burnu, Maws u a, 52-53. See also Mahmasani, Falsafat al-tashrd', 255-56 (jawaz al-tashrd' min qibal al-sultadn).

Mecelle, art. 58: al-tasarruf 'ala al-raiyya manut bi-l-maslaha.

See Murteza Bedir, ‘From Fikih to Law: Secularization Through Curriculum', Islamic Law and Society 11 (2004), 283, 384-5 (noting that he ‘accepted the Young Ottoman idea thatfikih is com­patible with modern needs and that it therefore is perfectly reasonable to codify it as a “code” but that the idea was really a “conceptual innovation, arguably the most important departure ever made from the traditional understanding offiqih” that effectively transformed a purely jurists’ law to state law').

See, e.g., Ba Husayn, Qawd'id, 153.

Ibid. (defining these canons as ‘administrative rules' governing the relationship between the state and the people).

See, for example, Eskridge, Interpreting Law, 12 and passim. Compare Jane Schacter, ‘The Chang­ing Structure of Legitimacy in Statutory Interpretation', Harvard Law Review 108 (1995): 593-663. Mecelle, art. 16 (al-ijtihadd la yunqad bi-mithlih).

Kamali, ‘Legal Maxims', 90.

Burnu, Mawsdi'a, 28 (al-ijtihdd la yunqad bi-mithlih), 39 (fa-la yumkin an tustaqarr al-ahkam).

For recent English-language works discussing Islamic legal canons, see Khadiga Musa, ‘Legal Maxims as a Genre of Islamic Law', Islamic Law and Society 21 (2014), 325-65; Kamali, ‘Legal Maxims', 77-101; Muhaqqiq Damad, ‘Islamic Juridical Principles', 89-107; Heinrichs, ‘Kawaid Fikhiyya', Schacht, Origins of Muhammadan Jurisprudence, 180-9 (chapter 6 on ‘legal maxims'). For my works on the topic, see my ‘Islamic Legal Maxims as Substantive Canons of Construction', 63-125; idem, ‘The Islamic Rule of Lenity', 1299-1351; idem, ‘Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear', in Law and Tradition in Classical Islamic Thought, ed. Michael Cook et al. (New York: Palgrave, 2013), 145-66; idem, Doubt in Islamic Law; and idem, ‘The Curious Case of Bughaybigha', 23-46, esp. 27-8, 40-4. The source in Arabic, Bahasa, Persian, and Turkish of the past 4 to 5 decades are even more extensive.

See Hossein Modarressi, The Legal Basis for the Validity of the Majority Opinion in Islamic Leg­islation', Under Siege: Islam and Democracy (Conference Proceedings), ed. Richard Bulliet (New York: Middle East Institute, Columbia University, 1993), 81—92, esp. 82—6. The chapter in question was published from a paper delivered at the John M. Olin Center for Inquiry into the Theory and Practice of Democracy in the University of Chicago in 1985.

See, e.g., the scholars and sources listed in notes 146—149 below.

Burnu, Mawsa'a, 77—92 (noting that jurists cited legal canons to provide rationales for rulings or preference for earlier but conflicting opinions (aqwal), citing and providing examples from the works of Kasani, Qadi Khan, Shihab al-Din al-Qarafi, Imam al-Haramayn al-Juwayni, Nawawi, Ibn Taymiyya, Ibn al-Qayyim and others).

See, for instance, Burnu, Mawsu'a, 30—1.

See, for instance, the sources listed in notes 37 and 61.

For discussion, see, for instance, Dawood Ahmed and Tom Ginsburg, ‘Constitutional Islamiza­tion and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitu­tions', Virginia Journal of International Law 54 (2014), 615—95 (discussing the origins of Shariah clauses); Intisar A. Rabb, ‘Least Religious Branch? Judicial Review and the New Islamic Con­stitutionalism', UCLA Journal of International and Foreign Affairs 17 (2013), 72—132, nn. 1 and 17 (listing countries with ‘Sharia clauses').

See my Doubt in Islamic Law, 320—21.

These trends present themselves most starkly and to most deleterious effect in Islamic criminal law. My critique centres on the modernist resurgence of Islamic criminal law. See my Doubt in Islamic Law, 317—20. There, I noted that a characteristic feature of its resurgence is a nostalgia among Mus­lims seeking political power and social control. They assert that Islamic criminal law, specifically, ensured order and adherence to the moral values that helped Muslims prosper in the past. These assertions are poorly reasoned and ahistoric. Nevertheless, appeals to an imagined golden era of Islamic ascendancy that was marked by control over criminal law brings symbolic legitimacy to actors in some West African countries, to name one example, like Northern Nigeria — however dra­conian and removed from the legal texts or historical practice their version of Islamic criminal law tends to be. In short, these actors seek to enforce criminal laws marked by harsh laws on the books and broad enforcement of punishment, and do not account for the operation of the doubt canon or other legal canons that were key to the historical definitions and practice of Islamic criminal law and procedure. For further analysis of Islamic criminal law in Northern Nigeria, see Luqman Zakariyah, Legal Maxims in Islamic Criminal Law: Theory and Applications (Leiden: Brill, 2015); idem, “Confession and Retraction: The Application of Islamic Legal Maxims in Safiyyatu and Amina's Cases in Northern Nigeria,” Journal of Muslim Minority Affairs, 30, no 2 (2010): 251—63. For Malikis, Muhammad al-Ruki wrote al-Qawa 'id al-fiqhiyya min khilal Kitab al-Ishraf 'ala masa’il al-khilaf li-l-Qada Abd al-Wahhab al-Baghdada al-Malika (Damascus: Dar al-Qalam, 1998). Other important Maliki works include Adil b. ‘Abd al-Qadir b. Muhammad Wall Quta, al-Qawa 'id wa-l-dawabit al-fiqhiyya al-Qarafiyya: zumrat al-tamlakat al-maliyya (Beirut: Dar al-Basha’ir al-Islamiyya, 2004); Sa'dana b. A'al Salim, Taysar al-maraji' wa-l-madarik li- qawa 'id madhhab al-Imam Malik: Qira’a hadatha fa qawa 'id al-fiqh al-Malika (al-'Ayn, UAE: Dar Yusuf b. Tashifin wa-Maktabat al-Imam Malik, 2007) and 'Abd Allah al-Hilali, al-Taq 'ad al-fiqha ' inda al-Qada 'Abd al-Wahhab al-Baghdada al-Malika: al-qawa 'id al-fiqhiyya al-mumayyaza li-fiqh al-Malikiyya namadhajan (Fez, Morocco: Matba'at Anfu, 2004). In Hanbali law, the 17th-19th centuries run of legal canons literature ended with a Hanafi jurist, Ahmad b. 'Abd Allah al-Qari (d. 1359/1940), who wrote a commentary on the Mecelle according to the Han­bali school called Majallat al-ahkam al-shar'iyya 'ala madhhab al-Imam Ahmad b. Hanbal. Perhaps having had their interest piqued by this intervention, Hanbali jurists then published sev­eral works on legal canons, including Sa'di's (d. 1376/1956—7), Risala fa ’l-qawa 'id al-fiqhiyya, al-Qawa 'id wa-l-usal al-jami 'a wa-al-furaq wa-l-taqasam al-bad!'a al-nafi 'a and his Tariq al-wusul ila 'ilm al-ma'mul bi-ma'rifat al-dawabit wa-l-qawa 'id wa-l-usul. More recently, Nasir b. ‘Abd Allah b. ‘Abd al-‘Aziz al-Mayman published al-Kulliyyat al-fiqhiyya fa al-madhhab al-Hanbala (Mecca, Saudi Arabia: n.p., 1424/[2003-4]).

Sa'id al-Shawi recently published a work on legal canons in Shafi'i law entitled Maqafidiyyat al- qawa 'id al-fiqhiyya min khilal Kitab Qawa 'id al-ahkam fa islah al-anam li- 'Izz al-Dan b. Abd al-Salam (Cairo: Dar al-Kalima, 2015). Likewise, Muhammad 'Umaym al-Ihsan al-Mujaddidi published Qawa'id al-fiqh with some 426 Hanafi canons (Pakistan: n.p., 1986) and Mustafa Mahmud Azhari published a commentary on an earlier Hanafi text on legal canons, Sharh Qawa'id al-Khadima (Riyadh: Dar Ibn al-Qayyim, 2013).

A few of the more notable works include Muhammad Husayn Yazd! (d. 1329/1911), al-Qawa'id al-fiqhiyya (unpublished manuscript); Mahdi b. Husayn b. 'Aziz al-Khalisi al-Kazim! (d. 1343/1924), al-Qawa'id al-fiqhiyya (unpublished manuscript); Al Kashif Ghita’ (d. 1373/1954), Tahrir al-Majalla (a commentary on the Mecelle, discussed above); Bujnurdi (d. 1395/1975), al-Qawa'id al-fiqhiyya (also discussed above); Muhammad Fadil Lankaran!, al-Qawa'id al-fiqhiyya (Qum, Iran: Mihr, 1416 [1995]); Muhammad al-Khamina'i, Lamahat 'ala al-qawa'id al-fiqhiyya fl al-ahadith al-Kazim- iyya (Tehran: n.p., 2005); Muhaqqiq Damad, Qavaid-i fiqh (Persian, with Arabic translation, in four parts; discussed above); and Muhammad Kazim al-Mustafawi, al-Qawa'id: mi’at qa'idafiqhiyya manan wa-madrakan wa-mawridan (Qum, Iran: Mu’assasat al-Nashr al-Islam!, 1412/[1991—2]).

See, for instance, works featuring first-time treatises on legal canons in Ibadi law (the majority tradition in Oman and present in parts of East and North Africa): Mahmud Mustafa 'Abbud Harmush, Mujam al-qawa'id al-fiqhiyya al-Ibadiyya, ed. Ridwan al-Sayyid (Muscat, Oman: Wizarat al-Aqwaf wa-l-Shu un al-Islamiyya, 2010); Mustafa b. Hamw Arshum, al-Qawa'id al-fiqhiyya 'inda al-Ibaadiyya (Muscat, Oman: Wiza!rat al-Aqwa!f wa-l-Shu’u!n al-Isl!amiyya, 2013). For other studies on legal canons in this vein, see works by authors such as Ba Husayn, Burnu and Motzki — all d iscussed above.

For a brief discussion of such developments, see my Doubt in Islamic Law, 317—21.

Burnu, Mawsa'a, 30. On critiques of and theories designed to explain Islamic legal casuistry, see ‘Baber Johansen, Casuistry: Between Legal Concept and Social Praxis’, Islamic Law and Society 2, no. 2 (1995): 135-56.

See ibid., 30-1 (hulul masa’ilfiqhiyya).

See ibid., 31.

Bujnurd! presented the lingering question this way: ‘Do legal canons play a role in the process of interpretation ('amaliyyat al-istinbat)? Are they restricted to [retrospectively] collecting or restating scenarios from substantive law from the past, or, alternatively, did they serve to [prospectively] expand the scope of substantive law in gathering those past scenarios such that they can now used to determine how to interpret and construct Islamic legal rulings (kayfiyyat al-istinbat)?’ Bujnurdi, al-Qawaa'id al-fiqhiyya, 14-15.

Consider the perspectives of Ibn Nujaym, Mustafa Zarqa and other scholars of legal canons, medieval and modern - who consider canons to be the by-product of individual cases, and to be filled with exceptions, and therefore, at most, to be sufficient as statements meant to bolster rul­ings in probative texts but insufficient as bases for a new rulings. See, e.g., Burnu, Mawsu'a, 44-7 (discussing reliance on Islamic legal canons to produce new legal rulings: hukm istidlal biLqawa'id al-fiqhiyya 'ala al-ahkam).

This scholar specifically notes that, in his estimation, canons that restate rulings from the founda­tional texts could serve as bases for new rulings while canons that do not could not. At the same time, he acknowledges that other jurists accept rulings based on rational principles laid out in the foundational texts — including the use of logic, public interest and custom—and that, for them, a wider swathe of canons could also be authoritative. Bu!rnu!, Mawsua'a, 47-9.

This observation was the major point of my book on legal canons in the context of criminal law. See, generally, my Doubt in Islamic Law.

Makarim-ShlrazI, Qawa'id, 17: ukawwin dhan'a li-l-wusul ila ahkam kathlra min awwal al-fiqh ila aakhirih.

Lajna 'Ilmiyya f! al-Hawza al-Diniyya bi-Qum, al-Qawa'id al-usuliyya wa-l-fiqhiyya, 18—19. Damad, QavU'id-i fiqh, 1—2 (noting, for example, that many modern legal rulings and opinions issue from the universal legal canon ‘no harm’).

Bujnurd!, al-Qawa'id al-fiqhiyya, 14—15.

Ibid., 15 (calling them societal legal canons: qawa'idfiqhiyya hayawiyya).

Ibid. (quoting Mutahhar!: jumud al-fikr al-ijtima'a lida fuqaha’ina).

On the notion of dynamic Islamic legal interpretation, see my lecture with this title. Intisar A. Rabb, “Dynamic Islamic Legal Interpretation,” Yale Law School (September 2017) (unpublished lecture). Compare William N. Eskridge, Jr., Dynamic Statutory Interpretation (Cambridge, MA: Harvard University Press, 1994).

Ralf Michaels answers this question as it relates to both legal traditions, I believe correctly, with an emphatic yes, even as he acknowledges the contested nature of his claim among comparatists. See his ‘Banning Burqas: The Perspective of Postsecular Comparative Law', Duke Journal of Com­parative and International Law 28 (2018), 213—45.

172 For arguments in the American context, see, for example, Eskridge, Interpreting Law, 12 and pas­sim; Schacter, ‘Structure of Legitimacy in Statutory Interpretation', 593—663.

173 See Anita Krishnakumar, ‘Dueling Canons', Duke Law Journal 65 (2016), 910—1006.

174 Karl Llewellyn, ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed', Vanderbilt Law Review 3 (1950): 395—406.

175 See, Jonathan R. Macey and Geoffrey P. Miller, ‘The Canons of Statutory Construction and Judicial Preferences', Vanderbilt Law Review 45 (1992), 647—72 (‘A regrettable side-effect of Karl Llewellyn's interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century.').

176 See, e.g., Kenneth A. Shepsle, ‘Congress is a They, not an It: Legislative Intent as Oxymoron', International Review of Law and Economics 12 (1992), 239—56. But see John Manning, ‘Second Gen­eration Textualism', California Law Review 98 (2010) 1287—1318 (noting that public choice theory, while initially damaging to the study of textualism and legal canons, had the unintended effect of strengthening the grounds for both).

177 Compare Eskridge, Interpreting Law, app., 407—45 (collecting the canons used in the US Supreme Court from 1986 through 2016) with James J. Brudney and Corey Ditslear, ‘Canons of Construc­tion and the Elusive Quest for Neutral Reasoning', Vanderbilt Law Review 58 (2005), 1—120, at 106—7 (cataloguing the use of some canons subsequently in the same court) and Abbe R. Gluck and Lisa Schultz Bressman, ‘Statutory Interpretation from the Inside: An Empirical Study of Congressional Drafting, Delegation, and the Canons', Stanford Law Review 65 (2013) 901—1025 (cataloging the use of canons in Congress).

178 See above notes 47 and 103, and accompanying text.

179 Burnu, MawsU'a, 22—23.

180 Ibid., at 24.

181 Ibid. (tanizu al-mas’ala bayna al-qa'idatayn).

182 See generally Ronald Dworkin, Law's Empire (Cambridge, MA: Belknap Press of Harvard Uni­versity Press, 1986).

Selected bibliography and further reading

Ba Husayn, Ya'qü b. al-Qawd'id al-fiqhiyya: al-mabadi >, al-muqawwimät, al-masadir, al-daliliyya, al-tatawwur. Riyadh: Maktabat al-Rushd, 1998.

Bujnürdi, Muhammad Hasan. al-Qawi'id al-fiqhiyya, ed. Mahdi al-Mihrizi and Muhammad Husayn al-Dirayati. Qum, Iran: Dalil-i Ma, 1424/2003-4.

Burnu, Muhammad Sidqi b. Ahmad b. Ahmad al-Ghazzi. al-Wajizfi idah qawa'id al-fiqh al-kulliyya. Beirut: Mu’assasat al-Risala, 1983.

Damad, Mustafa Muhaqqiq. Qavd'id-i Fiqh, 4th edn. Tehran: Markaz-i Nashr-i 'Ulüm-i Islami, 2001. Heinrichs, Wolfhart. ‘Qawa'id as a Genre of Legal Literature'. In Studies in Islamic Legal Theory, ed.

Bernard Weiss. Leiden: Brill, 2002, 366-84.

Kamali, Mohammad Hashim. ‘Legal Maxims and Other Genres of Literature in Islamic Jurispru­dence'. Arab Law Quarterly 20, no. 1 (2006): 77-101.

Al Kashif al-Ghita’, Muhammad al-Husayn. Tahrir al-Majalla. Qum, Iran: al-Majma' al-'Alami li- Taqrib Bayna al-Madhahib al-Islamiyya, 2001-2.

Mahmasani, Subhi. Falsafat al-Tashri'fi al-Islam, 5th edn. Beirut: Dar al-'Ilm li-l-Malayin, 1980.

Nadwi, 'Ali Ahmad. al-Qawi'id al-fiqhiyya: Mafhumuha, nash > atuha, tatawwuruha; dirasat mu"allafatuha, muhimmatuha, tatbiquha, 4th edn. Damascus: Dar al-Qalam, 1994.

Rabb, Intisar A. Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law. Cambridge: Cambridge University Press, 2015.

Schacht, Joseph. Origins of Muhammadan Jurisprudence. Oxford: Oxford University Press, 1950.

Tashkiri, Muhammad 'All et al. (eds). al-Qawd'id al-usiiliyya wa-l-fiqhiyya. Qum, Iran: al-Lajna al- 'Ilmiyya fi al-Hawza al-Diniyya bi-Qum, 2004.

Zarqa, Ahmad Muhammad. Sharh al-qawi'id al-fiqhiyya, ed. 'Abd al-Sattar Abu Ghudda. Damascus: Dar al-Qalam, 1989.

Zarqa, Mustafa Ahmad. al-Madkhal al-fiqhi al-'dmm. Damascus: Dar al-Qalam, 2004.

Zuhayli, Muhammad Mustafa. al-Qawa 'id al-fiqhiyya wa-tatbiquha wa-tanzimuha fi al-madhahib al-arbaa. Damascus: Dar al-Fikr, 2006.