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A Reality Check on Istihsan as a Method of Islamic Legal Reasoning
No full textAt one time, certain Western scholars of Islamic law mistakenly viewed the concept of istihsan as a form of equity. This error was noted in my earlier study of istihsan, and I redefined the concept as an application of legal logic by referring back to classical works on jurisprudence authored by Islamic jurists.\u27 These classical works defined istihsan as either (1) the preference for a recognized source of law over reasoning by analogy (qiyas), or (2) the preference for one reasoning by analogy over another that is considered weaker. Istihsan is a method by which new rules of Islamic law are derived through what might be called the reasoned distinction of authority. This earlier study, however, confined itself to works on jurisprudence, otherwise known as usul al-fiqh or the roots of the law. Such works seek to describe the manner in which legal reasoning operates in Islamic law, and throughout their pages one finds debates over the legitimacy of different sources of law and methods of legal reasoning. Since jurisprudence is a field where political, theological and philosophical points of view are advocated, the usulis (authors of these jurisprudential works) could be suspected of distorting their descriptions of the practice of law to favor one theory of jurisprudence over another. This very issue was raised at a conference a few years ago when several specialists on the works of usul al-fiqh raised a question about the objectivity of these works.3 Did these works describe the real state of legal reasoning in the actual practice of law in Islam? For the concept of istihsan, the question specifically is whether the jurisprudential concept of istihsan, described by the usulis as the reasoned distinction of authority, is the same as the practical concept of istihsan used by jurists in the solution of actual legal cases. To answer this question one must examine the original sources that expound the law as it is developed, not that describe it as part of an author\u27s theory. In American law, these original sources are found in statutes and cases. In Islamic law too, these original sources are found in statutes and cases. As will be explained more fully in the section of this article on statutory interpretation, statutes in Islamic law are the Qur\u27an and sunna of the Prophet. Cases are the myriad of legal opinions issued by jurists throughout the centuries of Islamic law. During its first millennium, Islamic law witnessed the grand development of its legal system through a coordinate organization of scholars and judges. There was no dependence on popular legislation or hierarchical bureaucracy. Rather, the development of law occuffed through legal opinions that solved problems on the basis of concrete facts in particular cases. In this regard, Islamic law was very similar to the development of the common law in England before the 19th century. Legal opinions (fatwas) in Islam are documented in a variety of treatises, which fall under the category of fiqh, the term for law in Islam. They can be found gathered in the form of collections, or they may be organized and analyzed in the form of abridgements (mukhtasars), treatises, commentaries (sharhs), and supercommentaries (hashiyas). These forms of legal literature are similar to the collections of cases in the common law system that occupy rows of bookshelves in American law libraries, and to the treatises that organize and analyze these cases in the form of nutshells, casebooks and hombooks. This article focuses on one of these works of fiqh to explore the use of istihsan as a methodological device in Islamic legal opinions, specifically in the area of sales. The fiqh work is a well-known treatise in the Hanafi school of law entitled Bada\u27i\u27 al-Sana\u27i\u27 fi Tartib al-Shara\u27i\u27, written by \u27Ala\u27 al-Din Abu Bakr ibn Mas\u27ud al-Kasani (d. 587/1 191). The 1971 Cairene edition is a ten-volume work covering several areas of law in 5,000 pages, and the area of law on sales is covered in a little over 400 pages in a chapter entitled Kitab al-Buyu\u27 ( Book of Sales ). In this chapter we find 37 cases that refer explicitly to the use of istihsan as a methodological device used to derive solutions of law. This article will analyze the first fourteen cases of istihsan in Kasani\u27s Book of Sales to determine whether its use in each of the cases matches the definition of istihsan as it is propounded in the works on usul alfiqh. Contrary to works on usul al-fiqh, Kasani\u27s Book of Sales does not seek to explain the different methodologies for deriving rules of law, but rather it reports legal opinions that derive rules to decide cases. The legal opinions describe the process by which the rules are derived and, in so doing, use methodological devices such as istihsan to reach their conclusions. There is no analysis, however, of the methodological devices themselves, such as is found in the usul works. This study will compare what the usulis had to say about istihsan with what is found by way of the actual use of istihsan in the fourteen legal cases that use istihsan to solve problems in the area of sales. Let us recall in more detail what the usulis had to say about istihsan. Bazdawi and Sarakhsi in the Hanafi school of law clearly defined istihsan as one of several techniques for preferring a solution of law over the one prescribed by reasoning by analogy (qiyas). One method is to find a reasoning by analogy that is stronger, and this method may be called the reasoned distinction of reasoning by analogy. Another method is the abandonment of reasoning by analogy in favor of a tradition (athar) in the Qur\u27an or the sunna, or in favor of consensus (ijma\u27), or in favor of necessity. Together, these two methods of legal reasoning may be called the reasoned distinction of authority. The first method that distinguishes between two reasonings by analogy distinguishes a case that has been justified by a certain cause (\u27illa) from a new case that appears to be governed by the same cause. If two cases are governed by the same cause, they both must follow the rule (hukm) of the case. In order to distinguish the first case from the second so that the two cases are governed by two different rules, the cause in the first case is reexamined and a different cause is found - one that exists only in the first case but not in the second. Thus, the rule that governs the first case now no longer governs the second. The reasoning by which the original cause is abandoned in favor of a new cause is considered stronger than the reasoning that produced the original cause, and it is called istihsan. The new cause permits the outcome in the first case to remain the same, but allows a different outcome in the second case. A classic case described in the literature is the case that forbids the eating of food left by predatory animals. The cause of the prohibition was originally conceived to be the uncleanliness of the meat of the predatory animal that made the food they touched unclean. Therefore, the food left by predatory birds would be unclean because their meat was unclean. Jurists reasoned, however, that a better reason for the prohibition on food left by predatory animals is the fact that saliva from the meat of the predatory animal is mixed with the food they touch and this mixing makes the food impure. On the other hand, since the skin, bone and hair of predatory animals is clean, and since the beak of a bird does not emit saliva, the food touched by predatory birds is clean. Thus, the original prohibition on the eating of food touched by predatory birds is changed to a permission by defining the cause of the prohibition through a better (istihsan means, literally, the deeming of something good (hasan)) reasoning process than originally took place. The second method of abandoning reasoning by analogy is to favor a recognized source of law, such as the Qur\u27an, sunna, consensus or necessity, over reasoning by analogy. This second method is described in the usul works as the creation of specific exceptions to general rules derived by reasoning by analogy. For example, qiyas requires that the object of a contract be present at the time of the making of the contract, but a tradition from the sunna permits a salam contract (the regulated sale of an object to be delivered in the future) as an exception to this general rule.
In sum, the usuli definition of istihsan is that it is a methodological device to derive a new rule to govern a case that appears to fall under an old rule, and we call this device the reasoned distinction of authority. The question to be answered is whether the first fourteen cases of istihsan that are specifically referenced by Kasani in his Book of Sales will confirm this definition. As we explore these cases in the following pages, I have taken the liberty of giving names to the Islamic cases in order to distinguish them as cases and to provide a means of easy reference. Furthermore, as an aid to understanding, these cases are compared with American cases that use a similar process of legal reasoning.\u27 5 The comparison should provide a shortcut to discerning the true significance of istihsan by identifying familiar ground. In all these cases we find that the practical concept of istihsan and its American counterpart matches the jurisprudential concept described by the usulis. It confirms the usuli definition of istihsan. What is interesting about the practical use of the concept as seen in these fourteen cases, however, is that it reveals a legal reasoning process that is not fully appreciated if one reads the usul works alone
A Social Contract between Students and the State: A Constitutional Analysis of Florida Statutes Related to Mandatory Expulsion for Weapon Possession, Corporal Punishment and the Use of Metal Detectors on Campus
No full textThis article analyzes the constitutionality of various Florida statutes as they may be applied to curtail acts of violence on school grounds. Analyzed from a social contract theoretical perspective, the article first examines whether Florida\u27s zero-tolerance policy regarding weapon possession in schools, which requires mandatory expulsion, comports with the Due Process Clause. Second, the article evaluates the relevant statutes pertaining to corporal punishment and the due process implications of this sanction. Third, the article explores the constitutional issues associated with the use of metal detectors on campus. Finally, the article briefly discusses whether the Double Jeopardy Clause precludes a subsequent criminal prosecution after a student has already been subjected to either the sanction of mandatory expulsion or corporal punishment. The author adopts a social contractual approach to balancing the administrative authority and duties of the state versus the constitutional rights of students. Strict application of principles of constitutional jurisprudence as well as state and federal precedent dictates that the three relevant statutes, despite some flaws, do not infringe upon the constitutional rights of students and further the legitimate interests of the state. Construing the applicable law from a social contract perspective neither increases nor diminishes the power of the state or the rights of the students. It merely offers a theoretical underpinning to conceptualize the analysis
Tracking the Circulatory of Confession Jurisprudence after Massiah & (and) Miranda: Can a Superficial Application of Property Law Make Sense out of Nonsense?
No full textAfter Miranda v. Arizona and Massiah v. United States, there were arguably three doctrinally separate methodologies for determining the admissibility of confessions in criminal proceedings. The interaction of these three doctrines has generated a complex, contradictory, somewhat inexplicable, and chaotic jurisprudence. This paper re-examines the post- Miranda interaction of the three doctrines, and argues that basic property law provides a conceptual framework for reconciling what appears to be an otherwise arbitrary and unpalatable collection of Supreme Court decisions. Section one briefly examines the totality of the circumstances test and the Miranda and Massiah decisions themselves, not from the standpoint of what the decisions now represent, but for what they originally held. Section two draws superficial analogies from property law, anthropomorphizing the jurisprudence of Miranda and Massiah in an attempt to explain and chart the jurisprudential shift away from the Fourteenth Amendment to the Fifth and Sixth Amendments and then back to the Fourteenth Amendment. The article analogizes the analytical sphere of the Fourteenth Amendment\u27s totality of the circumstances test to a discrete piece of real property. Miranda is analogized to a trespasser because of its obvious and intentional encroachment on the constitutional territory of voluntary and compulsion originally controlled by the Fourteenth Amendment. By analogizing encroachment to trespass on property owned by the Fourteenth Amendment, the Court\u27s rapid relegation of Miranda to a toothless and irrelevant doctrine, inseparable from the totality of the circumstances test, can conceivably be viewed as punishment for trespass. Section two continues by examining the Massiah doctrine. Massiah, unlike Miranda, did not expressly purport to replace or fine-tune the land of confession admissibility that before was owned exclusively by the Fourteenth Amendment. Massiah, it is argued, sort of drifted onto the constitutional landscape like a hobo, moving between the periphery of territory owned by the Fifth and Fourteenth Amendments and into its own Sixth Amendment territory. Eventually the Court, by blurring the distinction between Massiah and Miranda doctrine, was able to fine Massiah for trespass by infusing Fourteenth Amendment jurisprudence into this allegedly separate constitutional doctrine.\u27 Section three briefly employs the concept of tenancy in common, providing an example of how the interaction of the three doctrines has affected the totality of the circumstances test. The article concludes by examining a recent case that demonstrates that the present day relationship between the doctrines is akin to ownership of property as joint tenants
When Democracy Dies Behind Closed Doors: The First Amendment and ‘Special Interest’ Hearings
No full textIn the days that immediately followed September 11, 2001, the American public learned through the news media of perhaps the biggest round-up of persons of foreign ancestry that this country has experienced since the U.S. government evacuated Japanese Americans from the West Coast during WWII. In the first two months following the attacks of September 11, 2001, law enforcement authorities detained over 1,200 individuals for questioning in connection with the terrorist attacks. Among these individuals were 762 non-citizens detained by the Immigration and Naturalization Service (\u27INS\u27). Ten days after the attacks, Chief Immigration Judge Michael Creppy, under orders from John Ashcroft, issued a directive that all “special interest” immigration proceedings be closed to the public, including members of the detainee\u27s family. On August 26, 2002, the Sixth Circuit Court of Appeals ruled that the government\u27s blanket order closing all “special interest” hearings violated the First Amendment. Several weeks later, however, the Third Circuit reached the opposite result, finding that, under the two-prong \u27experience and logic\u27 test in Richmond Newspapers, no First Amendment right of access to deportation hearings existed. In May 2003, the United States Supreme Court declined, without opinion, to hear the Third Circuit case, allowing that decision in favor of the government to stand. This Article has two central objectives. The first is to unpack the recent decisions by the Sixth Circuit and the Third Circuit and to explore, in the context of legal history and current politics, how they could have reached such radically different results while applying the same legal standard. In doing so, I explore various theories examining the suppression of speech and other civil liberties in times of war or other threats to national security. My second objective is to examine what the proper standard should be for closing immigration hearings to the press and public, whether the existing standard of presumptive access has constitutional stature, and what role, if any, national security should play in the calculus. Many historians and legal scholars have concluded that during times of war or other national emergencies, the courts are more likely to defer to actions taken by the Executive Branch. It is what Professor Blasi calls the \u27pathological perspective.\u27 Nonetheless, the war on terror is likely to continue indefinitely. In that context, it is critical that the Court develop a First Amendment jurisprudence that will withstand the worst of times. My article concludes that the Court must be prepared to address the difficult issues that are likely to come before it over the next several years in a way that does not undermine the First Amendment or other civil liberties. I conclude that the federal government\u27s blanket closure of so-called “special interest” hearings to the media and the public infringed on their qualified right of access to such hearings. This right of access is grounded in the First Amendment, finding its roots in over 100 years of presumptively open deportation hearings and a nearly forty-year regulatory history of open proceedings. Furthermore, I show that compelling policy reasons for why such proceedings should be presumptively open to the press and public existed. Access to immigration hearings would thus appear to fit squarely within the “experience and logic” analysis adopted by the United States Supreme Court in Richmond Newspapers
Marriage and Domestic Violence in the United States: New Perspectives about Legal Strategies to Combat Domestic Violence
No full textDomestic violence is a serious problem in the United States. It has been the subject of significant legal responses, yet domestic violence remains a very substantial and widespread social dilemma in America. Most of the legal responses suffer from two significant flaws. First, they are based on a clearly erroneous assumption that marriage is the primary environment of risk. Second, they focus on protection and punishment rather than prevention. In fact, the relationship between marriage and domestic violence is much more complex than some conventional commentary has recognized. Explanations for why married women and their children are less often victims of domestic violence identify the insulating effects of bonding, identification, and investment. While a strong protective, punitive and compensatory legal response to domestic violence is necessary to protect persons in seriously dysfunctional and dissolving marriages, marriage in general is the safest environment for women when it comes to risk of domestic violence. Likewise, marriage education and marital skills training appears to have great potential to significantly reduce the level and rate of domestic violence with fewer incidental social costs than conventional negative legal and social strategies. Part II of this article briefly notes the multiple meanings of domestic violence in the American legal system, and reviews the evidence of the seriousness, magnitude, and significance of the ongoing problem of domestic violence in America. In Part III, the various protective, punitive, and remedial legal responses to domestic violence are described. The inadequacies and problems of those current legal responses are reviewed in Part IV. Next, the substantial potential that positive preventative programs such as marriage preparation, education, skills training, and marital counseling hold to overcome and reduce the social problem of domestic violence is noted in Part V. A concluding summary and comment is provided in Part VI
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 15, Issue 3, Spring 2003
A Primer on Cramdown - How and Why It Works
No full textCramdown has been referred to as the iron maiden of bankruptcy reorganizations- the dreaded cramdown. The object of this paper is to see whether that uncomplimentary reference is a bum rap or a deserved appellation. Obfuscated though it may be, is this feature of the Bankruptcy Code really a medieval form of torture, or when fully understood is it just another statutory provision that could have been more clearly drafted? Cramdown is not a word used by the Code. It is a lawyers\u27 euphemism for a very vital part of Chapters 9,3 11,4 12,5 and 136 of the Code-the statutory provision by which the proponent of a plan of reorganization or adjustment of debts may require the bankruptcy judge to confirm its plan despite the objections9 of classes 0 of claims or interests that are impaired under, and have not accepted, the plan. As some courts have stated it, the plan is crammed down the throats of the objectors. Congress has taken pains to assure that such cramming down is not undertaken unless and until the creditors and interest holders receive a certain amount of protection. The method of achieving the stated objective of this paper is to analyze in depth Chapters 11 and 13, followed by a somewhat cursory analysis of Chapters 12 and 9 in that order. While there are similarities among the cramdown provisions of the four Chapters considered, the dissimilarities are of sufficient magnitude to treat them separately, with emphasis on the more often used Chapters 11 and 13
The Battered Women Syndrome in Florida: Junk Science or Admissible
No full textIn this paper I will examine the admissibility of the battered woman syndrome in Florida as scientific evidence. At the outset I recognize many differing audiences title the syndrome in different ways. My focus is not on the correctness of its title but upon its admissibility in courts in Florida. My overall perspective is based on standards set forth by the Frye\u27 and Dauber? cases. In order to understand the syndrome, it will be necessary to first look at the concept of domestic violence. It will also be important to consider what the term battered woman syndrome means. After discussing the topic of domestic violence and the battered woman syndrome from a definitional standpoint, I will then examine the pivotal cases dealing with the admissibility of expert testimony, Frye and Daubert. I will then address Florida cases, which have dealt with the standard for admitting scientific evidence and the issue of the battered woman syndrome. After surveying these cases I will discuss whether admissibility satisfies the Frye test and also whether admissibility would pass a Daubert standard. The salient question that this paper will address is whether the battered woman syndrome in Florida is admissible evidence or junk science. The answer to that question will be addressed throughout the paper and more directly during the paper\u27s conclusion
Lawyers as Prophets
No full textLegal ethics is about injustice. My effort here is part of the broad, modern academic enterprise, and of the broad, modern professional enterprise now usually called professional responsibility. Both date from the Watergate scandal in the administration of President Richard M. Nixon, and the rejection, by legal academics and practicing lawyers, of the behavior of the President and other lawyers in that affair. Our modern enterprise, like the biblical Exodus, was born in outrage at the abuse of legal power. In university law schools such as this one, legal ethics is now a discipline characterized by schools of thought on ways to be a lawyer and a good person, both at the same time. The school of thought I belong to answers the question theologically: the way to be a lawyer and a good person, both at the same time, in teaching or writing about or practicing law is to be, at the same time, a Jew faithful to Torah, a Christian who follows Jesus. The present project explores such an undertaking with reference to the prophets of Hebrew Scripture - Moses, Jeremiah, Isaiah, Amos, Ezekiel, and the rest. I argue that the Hebrew Prophets, these biblical prophets, are sources of legal ethics and of jurisprudence for Jews and Christians. As I try to persuade you of that, I want also to make the suggestion that the biblical prophets were lawyers more than anything else. My favorite Old Testament scholar, Professor Walter Brueggemann, who trains Presbyterian ministers, makes a connection like the one I am suggesting to you - between morals in a calling such as the practice of law and the morals of the biblical prophets. [P]rophecy, he says, is an assault on public imagination, aimed at showing that the present presumed world is not absolute, but that a thinkable alternative can be imagined, characterized, and lived in. But, of course, as Calvinists tend to do, he finds that we have put obstacles in the way of thinking of our work from a prophetic focus. Brueggemann thinks, and I think, our neglect of a prophetic focus has to do with the facts that we are too well off, and that we manage the system we benefit from. We lawyers. We lawyers, who have deceived ourselves. We have lost (or have never developed) our ability to be angry at the injustice around us. First, we don\u27t see the injustice around us, as the Prophets did, because we are too comfortable - so that seeing injustice, and naming it for what it is, would disturb our comfort. And then, even if we do see the injustice around us, we take it in stride. We say it is intractable; we are doing as much as we can about it; the injustice and the pain of exploitation is part of the way things are; the tide is rising, thanks to us, and a rising tide lifts all boats
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 14, Issue 4, Fall 2002