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Islam's Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice Sadiq Reza New York Law School, [email protected]

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Islam's Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice Sadiq Reza New York Law School, Sadiq.Reza@Nyls.Edu digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 2009 Islam's Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice Sadiq Reza New York Law School, [email protected] Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters Part of the Fourth Amendment Commons, Privacy Law Commons, and the Religion Law Commons Recommended Citation Georgetown Journal of International Law, Vol. 40, Issue 3 (2009), pp. 703-806 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. ARTICLES ISLAM'S FOURTH AMENDMENT: SEARCH AND SEIZURE IN ISLAMIC DOCTRINE AND MUSLIM PRACTICE SADIQ REZA* Modem scholars regularly assert that Islamic law containsprivacy protections similarto those of the FourthAmendment to the U.S. Constitution. Two Quranic verses in particular- one that commands Muslims not to enter homes without permission, and one that commands them not to "spy "-are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these com- mands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulatedon the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof in the historical record that such rules operated in criminalpractice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam's pertinentprovisions with those of the Fourth Amendment. The Article concludes that authorityfor Fourth-Amendment-like protections certainly exists in Islamic law, but assertionsthat such protections do so exist, or have ever been routinely practiced before the modem period, are unsupported by the * Professor of Law, New York Law School. Research for this study was conducted primarily at Harvard Law School, where the author was a Visiting Researcher at the Islamic Legal Studies Program in 2004-05 and a Visiting Scholar at the Graduate Program in Fall 2007, and was generously funded throughout by NewYork Law School. The author is indebted to participants in workshop presentations at Harvard's Islamic Legal Studies Program, New York Law School, and the Boston University School of Law for insightful comments and questions, and to the library staffs at all three law schools for exceptional assistance. Peri Bearman, Ahmed EI-Shamsy, Nimrod Hurvitz, Aida Othman, Kevin Reinhardt, Frank Vogel, and Aron Zysow gave essential early guidance, and Robert Blecker, Steve Ellmann, Stan Fisher, and ShermanJackson generously read and commented on drafts. Thanks are also due a long list of scholars of Islamic law or history who graciously answered queries, sent advance copies of forthcoming work, helped identify and locate sources, or did all of these things: Eli Alshech, Nathalie Bernard-Maugiron, Michael Cook, Bogac Ergene, Eyal Ginio, Louise Halper, Yaron Klein, Clark Lombardi, Abraham Marcus, Hossein Modarressi, Tamir Moustafa, Rudolph Peters, David Powers, Delfina Serrano, and Kristen Stilt. (Of course, all errors and shortcomings are the author's.) Harvard University PhD candidate Shady Hekmat Nasser assisted ably with Arabic-language research, and at different times Kristen Eaton, Kristina Hilton, Bill Kaleva, Ned Thimmayya, and Dan Vissers provided first-rate adminis- trative support. This Article is dedicated to the Nour women of three generations whose support and forbearance over too many evenings and weekends allowed it to be written: wife Nawal, mother-in-lawJane, and daughter Najma. © 2009, Sadiq Reza. GEORGETOWNJOURNAL OF INTERNATIONAL LAW doctrinaland historicalrecords. There is, in the end, no obstacle to articulating search and seizure protections in Islamic law that meet modern notions of criminal due process; in this is the possibility of common ground between those who seek a greaterrole for Islamic law in today's Muslim world and those who seek a lesser one. TABLE OF CONTENTS INTRODUCTION ........................................ 705 I. THEORY, PRACTICE, AND AUTHORITY IN ISLAMIC CRIMINAL PROCEDURE ...................................... 710 II. "SEARCH AND SEIZURE" IN ISLAMIC DOCTRINE ............... 721 A. Scope of Inquiry ................................ 721 B. Quran and Traditions........................... 722 1. Searches: Entering Homes, Suspecting Others, and "Spying" .. ............................. 722 2. Seizures: Arrest and Pretrial Detention ......... 728 C. ClassicalJurisprudence ........................... 731 1. Searches ................................. 734 a. EarlyJurists:The Rule of "Manifestness........ 734 b. Ghazzali: Manifestness and the Muhtasib ...... 737 c. Mawardi: Rules for the Muhtasib, the Ruler and Police, the Magistrateof Grievances, and theJudge. 744 d. Other Classical Views ..................... 751 2. Seizures ................................. 752 3. An Exclusionary Rule?...................... 759 D. Modern Views ...................... 763 III. SEARCH AND SEIZURE IN MUSLIM PRACTICE ..... 767 A. The Pre-ModernEra: from 7h-century Iraq to 1th-century Egypt ............................ 770 1. Criminal Law Enforcement ....... 770 2. Entering Homes ................ 773 3. Suspecting Others and Spying ..... 774 4. Arrest and Pretrial Detention ...... 775 5. Complaints and Remedies ........ 778 B. Modern Period...................... 783 TV. COMPARATIVE THEORY AND POLICY ........... 786 A. CriminalLaw Theory ................. 789 B. Privacy Theory ..................... 792 C. Civil Society ....................... 795 D. Regulating the State .................. 797 CONCLUSION ............................... 802 [Vol. 40 ISLAM'S FOURTH AMENDMENT Oh you who believe! Enter not houses other than your own, until you have asked permissionand saluted those in them.... If you find no one in the house, enter not until permissioi is given to you... [Sipy not on each other ....2 The religious law cannot concern itself with suspicions of possible criminal acts ... [but] only with executing the legal punishments. Political leadership, on the other hand, has to concern itself with the investigating stage, in which is ascertained the commission 3 of crimes necessitatinglegal punishments. INTRODUCTION The story is repeated often: how the early Muslim leader Umar ibn al-Khattab ignored the crime of wine-drinking by a group of reveling' 4 Muslims because he had discovered that wrongdoing by "spying. Modern scholars regularly cite this story and others like it, along with Quranic verses including those above, to show that Islam protects personal privacy in its rules of criminal procedure. Implicit in these references, and occasionally explicit, is an analogy to the prohibition of unreasonable searches and seizures in the Fourth Amendment to the U.S. Constitution and the penalty for obtaining evidence by violating it: the exclusion of that evidence from a criminal trial. But how far can this analogy be taken? What precise interpretations did classical Muslim jurists give the relevant texts, and what rules did they derive from them? How have judges and rulers applied those rules over the fourteen centuries of Islam, in the service of what underlying principles, and with what results? What remains of those rules in contemporary crimi- nal doctrine and practice in the Muslim world? And how does all of this truly compare with the history, the principles, and the practice of the Fourth Amendment and its exclusionary rule? This Article addresses these questions. In doing so, it necessarily addresses broader and deeper questions about how to conceptualize Islamic law. For to identify rules that govern search and seizure in Islamic doctrine and assess the actual practice vel non of these rules is to 1. QURAN, 24:27-28. 2. QuRAN, 49:12. 3. IBN KHALDUN, 2 THE MUQADDIMAH 36 (Franz Rosenthal trans., 1980). 4. Actually, there are accounts of at least three such incidents involving Umar. See infra Section II.B. 2009] GEORGETOWN JOURNAL OF INTERNATIONAL LAW engage in several levels of scrutiny. The relationship between theory and practice in Islamic criminal law and procedure must be clarified. The respective jurisdictions of the scholar-jurists who articulate this theory, the judges who apply it, and the executive authorities who determine its everyday practice must be delineated. The authority of each of these realms of Islamic law-the doctrines ofjurists, the rulings of judges, and the practices of rulers and their agents-must be measured and compared. A definition of "Islamic" criminal procedure, indeed of "Islamic law" itself, must be provided. And within all of this, search and seizure doctrines must be identified, evidence of actual practice must be located, and policies underlying both must be un- earthed and examined. This Article conducts this scrutiny. The result, I hope, is not only a clarification of Islam's search and seizure doctrines but also fresh insight into Islamic law itself, indeed a fresh approach to studying it-an approach that considers practice to be at least as important as doctrine, and doctrine itself to be as variable as the circumstances in which it is articulated and the individuals who articu- late it. But why, it might be asked, present this approach through search and seizure?
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