Home » Articles » The Islamic Rule of Lenity: Judicial Discretion and Legal Canons

The Islamic Rule of Lenity: Judicial Discretion and Legal Canons

PDF · Intisar A. Rabb · Jun-15-2012 · 44 VAND. J. TRANSNAT'L L. 1299 (2011)

This Article explores an area of close parallel between legal doctrines in the contexts of Islamic law and American legal theory. In criminal law, both traditions espouse a type of “rule of lenity”—that curious common law rule that instructs judges not to impose criminal sanctions in cases of doubt. The rule is curious because criminal law is a peremptory expression of legislative will. However, the rule of lenity would seem to encourage courts to disregard one of the most fundamental principles of Islamic and American legislation and adjudication: judicial deference to legislative supremacy. In the Islamic context, such a rule would be even more curious, allowing Muslim judges to disregard a deference rule even more entrenched than the American one: a divine legislative supremacy to which judicial deference should be absolute. Yet, there is an “Islamic rule of lenity” that pervades Islamic criminal law. This Article examines the operation of and justifications for the lenity rule in the American and Islamic contexts against the backdrop of theories of law and legislative supremacy that underlie both. In both contexts, the lenity rule acts serves to expand the operation of judicial discretion. But whereas the use of American lenity is fraught and limited, Islamic lenity is relatively uncontroversial and expansive.  With the Islamic rule of lenity, we see both stronger legislative supremacy doctrines and more assertions (albeit hidden) of judicial authority to legislate. An examination of the role of lenity in Islamic law with respect to American law explains differences in the scope and exercise of judicial discretion in each legal system. It can also lead us to reconsider common public law theories that characterize rules of deference to doctrines of legislative supremacy and nondelegation as a constraint on judicial discretion.




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

The Vanderbilt Journal of Transnational Law has confirmed the schedule and panelists for its 2015 Symposium, This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters.

Read the Journal’s latest issue (Vol. 47 No. 5) here.

The Vanderbilt Journal of Transnational Law mourns the death of its founder, Professor Harold G. Maier.

We are pleased to announce the 2014-2015 Board of Editors and 2014-2015 Editorial Staff Members.

Please join us in congratulating the Vanderbilt Journal of Transnational Law 2013-2014 Annual Award Winners.

Coming up:

The Vanderbilt Journal of Transnational Law invites you to its 2015 Symposium, This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters.

Recent and dire international disasters, both environmental and humanitarian, have left legacies not only of destruction and destitution, but also of an uncertain legal landscape. The Symposium will address current and pressing international-disaster-response topics. These will include environmental effects, disaster assistance, humanitarian assistance, and criminal processes and sanctions in the wake of various types of international disasters. Symposium participants will include leading scholars from across the country.

The 2015 Symposium will take place on Friday, February 13, 2015 at Vanderbilt Law School, 131 21st Avenue South, Nashville, TN 37203. A detailed schedule will be available soon.

For information on the 2015 Symposium, as well as past symposia hosted by the Journal, please visit the Symposium page.

Explore Other Vanderbilt Law Resources