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This paper will identify some of the dissenters among Iran's jurists, from the scholarly-clerical classes specializing in Islamic law, to the country's criminal law legislation. The Iranian Constitution requires the criminal code, like all other statutes, to accord with "Islamic criteria," as determined by a Council of jurists presiding over parliamentary decisions within Iran's governmental structure. Recently, jurists sitting outside of government have challenged the existing criminal code, which purports to follow Islamic criteria. At issue is not only the formal debate about whether the criminal code aligns with classical Islamic law, but the fact that the debate is happening at all amongst jurists who formerly raised no public questions about those laws. Today, that has changed. Jurists both inside and outside of government are debating and proposing reforms to the criminal code. Why? One theory is that theirs is a response to international critique about the state of human rights as it relates to, prison abuse, false convictions, and due process with extremely harsh punishments. Another relates to issues of authority in response to societal discord; in attempts to regain the once hallowed authority of the edifice of Islamic law, some jurists feel that dissent is a necessary tool. This paper will identify some of the jurists launching these debates and - based on the content of the debates - attempt to raise questions about societal influences motivating them. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the interest of protecting the public space, lawmakers have high incentives to be tough on crime. This is true for both the American legal system with man-made laws and the Islamic legal system with ostensibly God-made laws. But judges have developed doctrines for thwarting criminal sanctions. In American law, this occurs through invoking legal maxim called "the rule of lenity," which requires that that doubts or ambiguities as to the culpability of a criminal defendant should be construed in favor of the defendant. In Islamic law, there is a parallel maxim with respect ḥudūd, or fixed criminal punishments, specifying that doubts in evidence or culpability mitigate fixed criminal punishments (the "ḥudūd maxim"). This paper examines how these maxims function in juristic conceptions and in practice in both the American and Islamic legal systems. It will focus on the rationales behind the maxim. If tough criminal laws are political and policy goods, then why do judges thwart them? Legislative supremacy is one rationale shared in both contexts. The paper looks to select cases from the Burger Court and from Islamic Spain, examining when lenity or ḥudūd maxims were actually invoked in criminal trials. In serving the judicial and juristic goals of legislative supremacy, do jurists contravene the legislative policy? Is this a regular feature of criminal jurisprudence because of the power of the state to impose criminal sanctions and the threat of displacing people and depriving them of life or liberty through false convictions? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The Iraqi constitution's designation of Islamic law as "a source of law" pushed the question of Islamic law's role in state law to the forefront of the debate on democracy and women's rights. Does "rule of law" in Islamic democracies forward Islamic law's ends or democratic ones? Are the two necessarily at odds? Indeed, classical Islamic family law entails tensions between notions of liberal democratic and human rights norms on the one hand, and Islamic values on the other. But one can imagine prospects for how hybrid legal responses can respond to calls for both tradition and progress. This paper will cover two themes. First, it will focus on the institutional role that the Iraqi constitution contemplates for the jurists by comparing its Islamic law provisions with those of other "Islamic constitutions" in the region. Second, it will look at how other countries have approached family law reform within an Islamic framework, and consider the role that jurists play alongside political and judicial processes. It will take the recent Moroccan family law (Mudawannat al-usra) as one model because of its unique joinder between classical Islamic law and modern human rights norms. The reforms resulted from a collaborative effort between the government and the jurists in a self-conscious attempt to harmonize human rights norms with classical Maliki law. In reviewing that process and analyzing the Islamic legal bases for the reforms, this paper will consider the implications for the rule of law and law's legitimacy in "Islamic constitutional" countries like Iraq. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]