School
Islamic jurisprudence
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Whoever deploys an automated decision system should answer for its harms, fault or no fault
Take the standard case. A bank uses an automated system to assess loans. A creditworthy applicant is refused. The refusal rests on correlations in the training data that no engineer chose and nobody can fully reconstruct. Who answers for it? The engineers…
Started by Hamza Qureshi7 replies -
Why did the rabbis write down the opinions they voted against?
I run a Talmud study group on Tuesday nights, and every year someone new asks the same thing: why does the text keep the losing side? When a law is decided, why preserve, often at length, the arguments of the sages who…
Started by Eliana Halpern7 replies -
Slippery-slope arguments in medicine are usually predictions, not fallacies
Medicine runs on slippery-slope reasoning, and most of it is sound. A simple case. A patient with a cold asks for antibiotics. If the GP prescribes "just this once", she has taught them that colds get antibiotics, they will ask again, they…
Started by Alistair Gow6 replies -
‘Illa, kāraṇa, gù: what each tradition’s word for ’cause’ lets it ask
I've been thinking about how the translators of the ninth and tenth centuries handled Aristotle's aitia. They used 'illa and sabab, and here is the interesting part: 'illa already had, or soon acquired, a second life in law. In Islamic jurisprudence, the…
Started by Layla Sfeir6 replies -
Outside a courtroom, who should carry the burden of proof?
In court the burden of proof is fixed by rules. In a criminal case the prosecution must prove guilt beyond reasonable doubt; in a civil case the claimant must win on the balance of probabilities. Islamic law has a well-known maxim to…
Started by Hamza Qureshi6 replies -
If consent of the governed is the newcomer, what did legitimacy rest on before it?
My students are learning about government this term. I showed them a comparative table of answers to the question "how should we be governed?" across many traditions: Greek, Chinese, Indian, Islamic, European. The thing that surprised them most was that only the…
Started by Aroha Tipene5 replies -
Zakat is a claim on wealth, not a gift. What does that do to the charity versus justice debate?
Many debates about distributive justice I read, especially in English, assume a sharp line: justice is what can be demanded and enforced; charity is good but optional, a gift. Taxes for the first, donations for the second. Zakat doesn't sit comfortably on…
Started by Nur Aisyah Rahman5 replies -
If nobody deserves punishment, could a court actually run on Pereboom’s quarantine model?
I studied law in Lahore and have never quite stopped reading it. Lately I have been reading Derk Pereboom, who argues that free will in the sense needed for basic desert does not exist, whether determinism is true or not. He does…
Started by Hamza Qureshi5 replies -
Every legal code I know contradicts itself somewhere, and courts still function
Every legal system I know contains provisions that conflict: a later statute that cuts across an earlier one, a general rule and a specific exception that both seem to apply, a constitutional provision in tension with an ordinary law. If classical logic…
Started by Hamza Qureshi5 replies -
Dharma, li, sharia, natural law: four words English keeps flattening into “duty” or “law”
Last week an engineering student in the evening class on Indian philosophy that I help with asked a good question: “If dharma is not duty, what is it like? Is there anything in other cultures that works the same way?” I tried…
Started by Meera Kulkarni5 replies -
A verdict that was right by accident: did the court know he was guilty?
Many years ago, early in my time as a court correspondent, I watched a magistrate convict a young man of a burglary largely on the identification of one witness. The identification was confident, the defence was weak, and I was as satisfied…
Started by Khalid Mahmood Awan5 replies -
Usul al-fiqh and Dworkin’s integrity: two ways of saying law is more than its rules
I read Iqbal and Hart side by side, more or less as a hobby, and lately I have been adding Dworkin and al-Shafi'i to the pile. I want to test a comparison that I find tempting and suspect is partly false. Dworkin…
Started by Hamza Qureshi5 replies -
Thirty-one years of watching courts decide what is ‘reasonable’, and no degrees of truth in sight
Here is something I watched every week in the courts of Punjab. A large part of the work was applying words that have no sharp edges: "reasonable doubt", "sudden provocation", "sufficient cause", "unsound mind". Now I read that fuzzy logic was invented…
Started by Khalid Mahmood Awan5 replies -
The five rulings, from obligatory to forbidden: why the middle categories are not just extra boxes
Standard deontic logic has three basic statuses: obligatory, forbidden, and permitted. Anything neither obligatory nor forbidden is simply permitted, and that's the end of it. Islamic jurisprudence has five rulings (al-aḥkām al-khamsa). An act is obligatory (wājib), recommended (mandūb), permissible (mubāḥ), disliked…
Started by Khalid Mahmood Awan5 replies -
Keeping the losing opinion on the page: is disagreement inside a tradition as deep as disagreement between traditions?
In my Tuesday Talmud study group we recently read the story in tractate Eruvin about the houses of Hillel and Shammai, who argued for years until a heavenly voice declared that "these and these are the words of the living God", and…
Started by Eliana Halpern5 replies -
How does Islamic legal reasoning decide on a financial product that no text mentions?
Our product team at the bank is looking at a "buy now, pay later" service. Inevitably someone asked whether it's halal. Someone else said, a bit dismissively, that the Qur'an and hadith obviously don't mention smartphone instalment apps, so either the scholars…
Started by Nur Aisyah Rahman5 replies -
Al-Shaybani’s siyar and the scholastics reached civilian immunity separately
In retirement I have been reading Majid Khadduri's 1966 translation of al-Shaybani's siyar, published as The Islamic Law of Nations. Al-Shaybani (749–805) was a student of Abu Hanifa, and his work on the siyar is one of the earliest systematic treatments of…
Started by Khalid Mahmood Awan5 replies -
Reading group: al-Mawardi’s Ordinances of Government, on the conditions of legitimate rule
Al-Mawardi (972–1058) was a Shafi'i jurist and judge in Baghdad at a strange moment: the Abbasid caliph was the recognised head of the community, while real military power in the city belonged for most of his life to the Buyid emirs. His…
Started by Layla Sfeir5 replies -
Qiyās, kal va-chomer and legal analogy: defeasible reasoning with centuries of rules
The reasoning I heard most often from the bench, in all my years in court, was neither deduction nor statistics. It was analogy: this case resembles that one in the respect that matters, so it should be decided the same way. Islamic…
Started by Khalid Mahmood Awan5 replies -
Is the ban on riba about bad outcomes, or about the form a transaction may take?
Many of my clients in Surrey are Muslim. Several of them won't take a conventional loan. One explained that it's not because the interest rate is too high; it's that a guaranteed return on money lent is wrong in itself, whatever the…
Started by Harpreet Kaur Grewal4 replies -
When should someone who isn’t an expert simply defer? What did al-Ghazālī say?
As a data analyst I defer to experts all day: to doctors about my health, to engineers about the bridges I drive over, to the people who built the statistical libraries I use. I can't check them. I'd like to understand when…
Started by Nur Aisyah Rahman4 replies -
Thirty-one years in the courts: legal causation is not physical causation, and should not be
For thirty-one years I reported on the courts of Lahore for a newspaper, the last ten mostly from the sessions courts. In retirement I am reading the jurisprudence I only skimmed in those years, and causation is where philosophy and the courtroom…
Started by Khalid Mahmood Awan4 replies -
Accident or intent: how should a court decide what someone actually did?
The cases that kept me awake, in my years reporting from the courts, were not the ones where anyone doubted who struck the blow. They were the ones where we knew exactly what happened physically, and everything depended on what the accused…
Started by Khalid Mahmood Awan4 replies -
Austin says a vow on stage is void. The jurists said some words bind even in jest. Who is right?
This one comes from the courtroom. Since retiring I have been reading Austin, and one of his remarks keeps returning me to my old law books. Austin says a performative is "hollow" when said by an actor on a stage or as…
Started by Khalid Mahmood Awan4 replies -
What are the “objectives of the law” (maqāṣid) that people keep mentioning, and why do they matter?
In a discussion at our mosque youth group, one speaker kept saying that a ruling has to be understood "through the maqāṣid", the objectives or purposes of the sharia. Another person said this is exactly how people end up ignoring the texts.…
Started by Fajar Nugroho3 replies -
Shah Waliullah
Shah Waliullah of Delhi was an Indian Muslim scholar, jurist and reformer who studied in Mecca and Medina before returning to teach in Delhi.…
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Ibn Hazm
Ibn Hazm was an Andalusian poet, theologian, jurist and historian of religions, born in Córdoba during the last decades of the Umayyad caliphate. A…
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Al-Mawardi
Abu al-Hasan al-Mawardi was a Shafi'i jurist and judge in Basra and Baghdad, serving the Abbasid caliphs during a period when real power lay…
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Al-Shafi’i
Muhammad ibn Idris al-Shafi'i was a jurist who studied in Mecca and Medina, taught in Baghdad and spent his last years in Egypt. The…
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Al-Shatibi
Abu Ishaq al-Shatibi was a Maliki jurist of Nasrid Granada. In al-Muwāfaqāt he developed the theory of the objectives of the law (maqāṣid al-sharīʿa),…