What's Wrong with the Study of Islamic Law Today

For my first post, I thought I would try to give my reasons for why I am writing this blog.  It is my purpose to clarify and explain Islamic law in the modern world, a subject I think is largely misunderstood in many ways.

In order to demonstrate the crisis, and it is most definitely a crisis, in the way that Islamic law is approached and understood today, I'd like to draw on two very recent news stories concerning Saudi Arabia and the Sudan, respectively.  In Saudi Arabia, a woman was sentenced to 90 lashes (raised to 200 lashes on appeal) for  "Unlawful Seclusion" with a man not her husband (her ex fiance) prior to being gang raped (along with her ex fiance) by seven individuals. Apparently she was in a car with the ex fiance, though beyond this the circumstances are largely disputed. In the Sudan, a by all accounts well meaning English schoolteacher named a class teddy bear Muhammad at the request of the class (a common name throughout the Muslim world).  She has been convicted of a crime under Article 125 of the Sudanese criminal code and has been sentenced to fifteen days in prison and exile.  The maximum punishment under the act could have been 40 lashes or six months in prison.   Throughout the past few days, I have been asked whether or not all of this nonsense is "Islamic law."  The answer, of course, depends very much on what "Islamic law" is supposed to mean.

Generally, inasmuch as the question of whether or not something is Islamic concerns Sunni Islam (it does here, both Saudi and the Sudan purport to apply Sunni rules), the manner in which this is approached by academic scholars, and really the mainstream media, at least implicitly, is to at least start with the rules of the classical era of Islamic thought, which ended about 400 years ago.  This "law" is more accurately the body of rules and norms known as the shari'a, which is developed from Islam's original sources, primarily the Qur'an, God's Revealed Word to Muhammad, and the hadith, the collection of stories, traditions and utterances allegedly of Muhammad (I say "allegedly" because the whole system depends on the reliability of chains of narrators reporting the hadith from one to another spanning decades, and we've all played the telephone game in kindergarten).  Jurists of the era coming from the four Sunni schools of thought wrote long compendia on their derivations, often in some conflict with one another, and these ultimately are the (nonuniform and uncodified) rules of the classical era.

So when asking if something is or is not Islamic and with reference to the two current issues I have raised, our American scholars of shari'a would, if adopting this approach, go to one or more of the various compendia  developed by these medieval jurists, read through the varying opinions and come up with some explanation of what the classical jurists thought and then tell us its relevance to the question of the day (in this case, teddy bears and seclusion).  Not all necessarily end the inquiry there.  Some do incredibly seem to suggest that this is the be all and end all of Islamicity, this bunch of men (all men, at least those who are quoted) who've been dead for 400 years or more.  Others moderate their views and suggest the classical era starts, but does not end, the analysis.  The media then dutifully takes this down and we get reports on what is or is not "blasphemy" or "seclusion" under the shari'a and begins its reports with talks of "blasphemy" and whatnot.

It shouldn't take a legal expert to see why that's just completely nuts.  Would anyone from the classical era unfamiliar with modern technologies really be able to give us guidance on whether or not sitting in a car with a person of the opposite sex is forbidden?  Isn't it possible, or within contemplation, that even conservative Islamists view male female relations different than their medieval forebears, who presumably never rode taxis, never went to a bank and found a female teller and never saw uncovered women on television? THAT world is our starting point for modern Muslim rules?

Turning to the Sudan, would a medieval jurist know what a teddy bear even was?  Does it matter at all to the conventional wisdom that the crime under Article 125 of the Sudanese criminal code is NOT blasphemy, it is "publicly cursing or insulting, any of the religions or their religious customs or its sacred matters . . . ?"  Does anyone believe that medieval jurists actually cared about protecting the "religious customs and sacred matters" of religions other than Islam as this law at least purports to? Would medieval jurists of any religion have phrased anything so ecumenically?  Does anyone at all reporting on the shari'a crime of blasphemy care in this absurd case about this actual law, under which this poor actual woman is being judged, instead of some academic construction of what is happening based on sources the Sudanese judges and lawyers aren't reading?  (Those who do care and can read Arabic can find the law copied here.)

Given the obvious limitations of this approach of perusing the medievals, some of us have asked precisely why we should be bothering with them and what relevance anything they said could possibly have to our lives, lived in such different circumstances. Generally two answers are given in response, though there may be others.  Some say that "orthodox" Islamic law, "true" Islamic law, is classical Islamic law and this lives in the hearts of the Muslim people.  This, it seems to me, would mean Muslims don't really care about their nation states, or human rights as the modern world envisions it, or modern commerce, what they really all want is to go back to a world of slavery, caliphates, Houses of Islam and Houses of War, where they ride camels and not taxis and where what the jurists said might actually make some sense.  You didn't have to see, as I did, hundreds of thousands of Iraqis waving national flags and purple fingers to realize how hard that is to believe. 

The other, more sophisticated reason commonly given is that in fact while circumstances change and rules change over times to accommodate the reality of those changed circumstances, there is a kernel and core that dates back to the classical era, from which modern rules are taken.  So we really do have to know 15th century rules on property, 14th century rules on crime, 16th century rules on the law of war, 12th century rules on male-female relations and so on because they are the foundation of everything done today.

Except that nobody (even Islamists) follows medieval Islamic rules of commerce, where "contracts" were divided into a mulitplicity of forms and fairly significant rules existed for when one could vary the nominate form through stipulations.  Nobody (even Islamists) follows the classical rules on jihad (more on this another time), thankfully nobody (or almost nobody, even Islamists) owns a slave.   The list could go on for some time. What then is the basis upon which we can truly say that the classical world animates all our conclusions when quite patently this "core" has shrunk so far from our view in the last 400 years that in many cases we can't even recognize it anymore?  It hardly seems worth the attention given to it.  You can study corporate law, for example, by starting with Sir Coke's 17th century Sutton's Hospital opinion as the foundation, but something would be seriously wrong with you if you spent more than a day, maybe two, on it.  We've all moved on. 

No, I'm afraid, that classical world is dead and gone, resurrected by modern Muslim theologians to be sure when they want to make a point and find a classical quote that will help them (or even develop from a pastiche of quotes a modern financial practice such as Islamic finance, more on that another time), but good for little else.  So if we want to understand what is happening to our poor English schoolteacher sitting in a Sudanese jail for naming a teddy bear or our even more unfortunate Saudi rape victim who might be facing 200 lashes, we need something other than dead jurists.

My colleague  Lama Abu Odeh in a wonderful article in the American Journal of Comparative Law has argued as a result of all of this that in fact there is no such thing as pure generalized Islamic law anymore.  I don't agree at all, but she has a point here.  First of all, 90% of the law in most of the Muslim states is transplanted, secular civil law, Saudi Arabia is an exception and not a rule in this respect.  Secondly. even if you want to think of this Sudanese law, for example, as Islamic in origin, still to understand it, you should read the codified law, read the judicial opinions applying it, understand the legal culture of the people who enacted it, because it is SUDANESE law, not some medieval thing, at work here. 

I haven't done justice to her argument in a paragraph, and I can't explain everything I find troubling, though you can read my article here for more details, but it suffices to say that there is quite a bit about the social order in Muslim states that is organized through a modern (not classical) conception of shari'a.  This can take the form of influencing legislation, but it is much broader.  Shi'is for example, have the same Muslim rules of commerce, from Lebanon to Iraq to Pakistan, all organized separately from state law (to the extent they take shari'a rules seriously, and very many do).  I would argue in the international sphere a modern conception of jihad has caused Muslim nations to take positions respecting the law of war and its relationship to terrorism that are in contrast to nearly every other nation in the world (explosive statement, read the article listed above or just wait for another blog post for more).  So I think there is a such thing as a generalized "law" operating here, different from if related to the laws of the various Muslim states.

Modern lay Muslims may be reading this and wonder what all the fuss is about concerning the content of Islamic law.  They don't usually bother to check medieval rules, it isn't the classical world that they think about.  Usually when they want to know a rule, they simply say it must be in the Qur'an or the hadith.  In other words, the classical stuff isn't the point, the original sources are.

While this helps demonstrate the entire poverty of the classical approach (because why aren't Muslims caring about classical rules if they are so important to them), to simply claim adherence to Qur'an and hadith is a little simplistic and reductive, and it's not hard to see why.  Everyone claims to follow the Qur'an and the hadith (the latter are sometimes referred to as the Sunna, so often you hear "Qur'an and Sunnah" instead).  From liberal to conservative, terrorist to Muslim member of the US army, generally if they claim to be acting in accordance with Islam's dictates, they will claim to be adhering to the Qur'an and the hadith.  Taking our Saudi case as an example, there is a hadith that indicates that when a man or a woman are secluded together, the devil becomes the third among them.  Is this an admonition to be careful?  An announcment of sin unaccompanied by criminal sanction?  Or a basis for criminal behavior not rising to the level of adultery?  Everyone who claims to follow hadith of this sort will have an answer.  The more learned will be distinguished from the more ignorant, though not so much by their position, but their support.  Some would, to use Muhammad Al Ghazali's phrase (popularized by Khaled Abou El Fadl in his book The Great Theft) would simply "hurl" the hadith out as justification.  Others, more learned, might put things in deeper and more careful contexts, and explain more thoroughly and intelligently the basis for their position.  But people will continue to disagree, based on their own ideological dispositions (they like the Saudi ruling, or they don't).  So who is right and who is deluded, or disingenuous? 

In a word, everybody and nobody.  A religion doesn't develop more than a billion adherents, as ours does, and survive over fourteen centuries, as ours has, without some built in flexibility.  It's hard to argue that any single opinion is the correct one based on such sources.  I don't mean to suggest one can argue anything at all, but certainly quite a bit is plausible and open for debate.

So then what to do?   How do we know what is and is not Islamic?  I think the answer, and the only really logical answer, is to look to the community as it exists today.  Not to every member,  but to those whom the community has given the authority to interpret.  In the Shi'i world, this is fairly easy, there are a finite number of high scholars (Grand Ayatollahs) whose interpretations are considered legitimate, and Shi'i laypeople are required to follow them.  That doesn't mean they always do, some Shi'is are more secular than others, some take the requirements more seriously than others, but the doctrine indicates they are supposed to, this is generally acknowledged.  In the Sunni world, this is harder, no comparable hierarchy and clear authority figures exist, but still there are persons who are considered sources of authority to whom questions are directed.  Yusuf Qaradawi, for example, has his own call in show on Al Jazeera, generally speaking when he declares something forbidden, his judgment is not publicly questioned.  The same can be said of Muhammad Taqi Usmani concerning matters of Islamic finance in particular.

Look at the experts, and we can find a clear enough answer to the questions posed above.  Even the victim's lawyer isn't so much questioning the existence of the crime of unlawful seclusion in this case, only the application of the crime to the particular facts of his client.  He argued recently on a program on the popular Arab network LBC that she was not in fact secluded, but in a car in a public location where all could see her.  The victim's husband stressed his wife's good faith, not that women should be permitted to be secluded with men.  The outrage in the Arab world has generally centered on the harshness of the penalty when compared to the penalties the rapists received and the appropriateness of criminal sanction at all for a shari'a violation of this sort, rather than the existence of any shari'a violation for Unlawful Seclusion.   When conservatives rail about the sinfulness of the act in question, as did a prominent Saudi Sheikh on the same LBC program mentioned above, the retort is always respecting the facts in this case and the accompanying punishment, rather then whether or not a sin exists.   I can't complain to be an expert on every nation of the Middle East, but I've lived in one for several years, and I've done work in others, and never have I found it acceptable for a woman to be alone with a man not her husband not even, as happened to me in one of Iraq's more liberal cities Suleymania, for a job interview (they come with their brothers).  I haven't cracked open the classical authorities, but I know the answer to the question--Unlawful Seclusion is a violation of the shari'a as it exists today, but as to whether or not it merits criminal sanction there is a decided split.  Some absolutely think it does, others, even those advocating shari'a as the basis of all law, don't necessarily agree that lashing or other criminal penalties are appropriate. 

I don't mean to delegitimize alternative opinions, of course a liberal Muslim can disagree and that doesn't make her less of a Muslim, but if we are going to define Islamic law as something less than what ever single Muslim believes, which would largely generalize it out of existence, we do have to accept that the community as a whole though of course not each member tends to accept a particular interpretation to the extent that they care about the shari'a as all as many do.  (Of course there are many cultural Muslims or those who don't really think shari'a is terribly important as well, and I am not including them not because they aren't legitimate viewpoints, but because their point would be that shari'a shouldn't matter, and the whole point of this is what the shari'a is in the modern world, premised on what I consider the empirically obvious assumption that shari'a does matter to large numbers of Muslims.)

As for the teddy bear, I think one can discern a very different reaction.  Yes some Sudanese clerics argued for even harsher sanction, and yes you find the nuts on the BBC Arabic forum and various call in shows denouncing heaven knows what, but the British Muslim organizations generally dismissed this as a silly circus, and even the Sudanese couldn't manage a demonstration of more than one thousand people.   A little kid in Baghdad when I was living there had an imaginary friend called Muhammad, we all played along, I don't remember anyone being terribly upset that we directed the Name of the Holy Apostle of God to the thin air, the main objection by some was to encouraging delusional behavior in the manner of imaginary friends than an insult to religion.  When I compare the reaction to that of the Danish cartoons (no major Muslim organization called THAT a circus), and the relative disinterest of respected religious scholars in supporting the Sudanese verdict, I tend to conclude nobody thinks the shari'a, as opposed to Sudanese politics, has very much to do with any of this. 

Now of course this wasn't a very thorough analysis, this isn't a law review article, it's a blog post.  But I think approaches of this sort will educate and enlighten, rather than confuse with pointless digression into well nigh meaningless antecedents.  I hope to take this approach in future posts with matters of different sorts, from jihad to finance to women's rights, to see where Islamic law, in our times, has taken us. 


And let the games begin.

 

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  • 12/1/2007 11:41 AM Derek wrote:
    Very interesting post, I look forward to more. Quick question: if I read you right, you say at the end that, unlike the Danish comics incident, the present uproar over the teddy bear has more to do with Sudanese politics than with Shari'a. What was it about the comics case that, in your eyes, made it a more legitimate Shari'a violation? Was it just that it was more reasonable to find the comics insulting? Or did it have to do with something else, perhaps the fact that Muhammad was being represented in the cartoons?
    Reply to this
    1. 12/2/2007 1:17 AM Haider Ala Hamoudi wrote:
      Well, to be clear, when I say it's more legitimate, I'm not so much saying it's more legitimate as in it's what I happen to believe, but more legitimate in that when you take the general broad Muslim opinion out there, and in particular the experts, there was definitely a pretty firm consensus that this was a shari'a violation, relative to the teddy bear incident.   And ultimately, the opinions of the modern experts (meaning those the community tends to trust, keeping in mind we are dealing with an extraordinarily broad and cacophonous group when we talk about the Muslim community, it is by no means monolithic) is what defines the shari'a.

      Yeah, I think in the Danish case it was a combination of the depiction of the Prophet, and really more to the point the manner of the depiction that really determined the matter.  It's harder to tell with the Sudanese case, mostly folks like Qaradawi, Usmani, Sistani, even Khaled Amr have tended to avoid discussion entirely, but do keep in mind this wasn't at all a depiction of the Prophet and certainly was not comparable in terms of its insulting or offensive nature.  

      Depiction of the Prophet is actually a wonderful example of the evolving  nature of shari'a.  Three years ago I took a tour of the Supreme Court.  On one of the friezes was a depiction of Muhammad, and the tour guide proudly pointed this out (along with Moses and a few others) to demonstrate the open minded and catholic (small c) nature of the institution.  Took a similar tour last year, the subject was studiously avoided, even when I brought it up.  And each time I had some Iraqi Muslim students and profs with me.  First time, they looked at it and thought it was interesting.  The second time, scandalous.  You don't need to go back four hundred years to see how sensibilities concerning rules of shari'a have changed.  On this issue, just go back four.

      Thanks for the comment

      HAH
      Reply to this
  • 12/1/2007 7:55 PM Patrick S O'Donnell wrote:
    Dear Professor Hamoudi,

    I found your analysis here interesting. I would like to know what you think of my introduction to shari'a as found in the following:

    Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’ The function of Sharī’ah is here analogous or similar to that of Natural Law among the Stoics. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’ We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). [to be concluded in another comment]
    Reply to this
  • 12/1/2007 8:03 PM Patrick S. O'Donnell wrote:
    Here is the conclusion to my previous comment:

    Platonic Forms—like the Sharī‘ah—are (is) indeterminate, while nonetheless serving as normative, intuitive, and nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, indeterminate, and nonpropositional, and thus cannot directly serve as a normative standard (i.e., any interpretation of the Divine Will needs religiously rationalized justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts. As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring nonpropositional insight into divine law. [I need one more posted comment to finish.]
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  • 12/1/2007 8:04 PM Patrick S. O'Donnell wrote:
    That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.’ Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) can examine and refute propositions that claim to fully capture the nature or essence of the Divine Will, that pretend to fully embody the Sharī‘a. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense. And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the Divine Will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in his interlocutors in dialectical dialogue). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of “the Good,” the Divine Will or Sharī‘a.

    Thank you.
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  • 12/1/2007 9:02 PM Al-Odah wrote:
    I take it you are willing to be tried for blasphemy.
    Reply to this
    1. 12/2/2007 1:23 AM Haider Ala Hamoudi wrote:
      Not sure if you meant by this that my post was blasphemous or that you felt I was insufficiently critical of blasphemy and therefore tolerant of trials under it.  If the former, I suppose some will find it so, as they find so much blasphemous, though personally I find that type of anti-intellectualism (not by you!) within Muslim circles distressing given that I do consider myself a Muslim, and a proud one.  If the latter, the point of the post was not to defend trials for blasphemy or anything else, but to explain very real phenomena affecting the Muslim world, at least as I see it, some of which (though not all) are indeed quite distressting.  
      Reply to this
      1. 12/3/2007 4:26 AM Al-Odah wrote:
        I meant the former, with tongue-in-cheek. But I am intrigued by your suggestion that an accusation of blasphemy is anti-intellectual. Is there no intellectual content to the concept of blasphemy? Are not its contours worthy of discussion? Is not there a proper application of the concept in Islamic law? And are not there certain scholarly discussions that step over the line of intellectual discourse into the raging fires of blasphemy? It seems your attitude toward blasphemy is that it's a bogus category, like Heidegger's Nonexistence.
        Reply to this
        1. 12/3/2007 2:19 PM Haider Ala Hamoudi wrote:
          Interesting comment.  I guess I'm not quite saying it is bogus entirely, but within the Muslim community there are shockingly high numbers of people who respond to opinions they don't like as "blasphemy" and then argue, as a consequence, that those who adopt them are apostates.  It is a tool of delegitimization in that way.  THAT certainly is anti-intellectual, but yes, you could have an intelligent discussion about what is or is not within the realms of legitimate Islamic discourse that is neither so broad as to generalize the concept of Islam beyond existence nor so narrow as to suggest that there is not ample room for disagreement within the community.  I don't know if I'd necessarily adopt the term blasphemy given its awful connotations in the Islamic context (I'm equating the Arabic kufr with blasphemy which is close enough for these purposes), but your point is well taken.
          Reply to this
  • 12/3/2007 5:00 PM Arab Law Student wrote:
    As a Middle Eastern law student who thinks about the issue of Islamic law an awful lot, I find the post disappointing, though I will be back to read more posts.

    It disappoints me because it sets up too many straw men. "Turning to the Sudan, would a medieval jurist know what a teddy bear even was?" No, but this is hardly a legitimate argument. The point is that many of the Islamic countries, through their legal systems, political philosophy, and popular religious institutions, want to apply a number of classical, medieval, and post-medieval Islamic doctrines to contemporary life. A number of critical analyses of Islamic law attack the legitimacy of a religion-based jurisprudence per se. As an Arab, I am angry and deeply embarrassed at the existence of any Islamic law, in any form, anywhere, though especially in Arab countries.

    Of course Islamic Law is too broad a category, but what do you expect from the popular media? Your criticism of Western scholars of Islamic law is welcome, and we should all be a tad more realpolitik about shari'a's existence. But that does not mean that we should not denounce it in the same breath, and it does not mean that we cannot accurately (though not exhaustively) accuse it of digging deep for medieval and classical justification.
    Reply to this
    1. 12/3/2007 5:12 PM Haider Ala Hamoudi wrote:
      Thanks for the comment.  I look forward to your reading more.

      Why is not knowing what a teddy bear is a legitimate argument?  If we take someone who has never heard of political liberalism, lives at a time when the concept isn't meaningful, and doesn't therefore spend one minute thinking about it (say Ibn Taymiyya) and then someone asks me, on the basis of what this guy, and numerous others of the same era said, is political liberalism consonant with Islamic law or not, then I think it is perfectly reasonable to say "they don't even know what political liberalism is, it's crazy to suggest you can come up with a meaningful answer." Any answer is just making something up.   

      Perhaps the problem is that I haven't made myself entirely clear.  I haven't said at all that modern jurists do not dig for medieval justification.  Certainly it would be wrong to suggest this.  What I am saying is that while one can dig deep for medieval justification, the OUTCOME that one ends up coming up with has nothing to do with what the medievals thought, because they didn't think about these things, not about political liberalism and not about teddy bears.   Instead, the outcome is driven by modern political biases and expectations.  The medieval justification is just clothing an ideological and political position with useful legitimizing rhetoric. 


      Reply to this
      1. 12/3/2007 5:37 PM Arab Law Student wrote:
        I simply disagree with your argument. If we agree that the American political/legal system is, while imperfect, fairly good, then I cannot see how your argument survives. The framers could not have foreseen the internet, but their arguments about the protection of speech guide internet jurisprudence today. Just because Madison and Jefferson did not know that in the future, individual with websites would use domain names identical to another firm's trademark, and use those sites to mock the firm, it does NOT follow that their basic arguments about parodic speech outweighing profit concerns made little sense then and are not helpful now.

        Medieval Islamic jurists may not have known what teddy bears were, but they were very clear about tying human value and liberty to a particular reading of one particular version of an allegedly sacred text. And they were keen to point out that human beings within territory controlled by Islamic authorities and under the control of Islamic jurisprudence, would be ill-advised to represent or in any way demean the Islamic prophet Muhammad.

        You are quick to argue that medieval justification is just clothing an ideological/political position (your use of the term ideological is, I think, incorrect; I would consult Terry Eagleton or Frederic Jameson for a more accurate use), but you are unwilling top call Sudanese criminal/civil code mere clothing for classical-medieval-post medieval shar'ia. Sure it's technically a national, contemporary statute. But it is obviously directly based on Islamic iconoclasm rooted in the religious texts and tradition.

        I really think the argument that because an 11th century thinker could not have imagined the future factual circumstances to which her argument could be applied, the argument and the contemporary rhetoric that refer to it are somehow illegitimate, is dead wrong. The true test is peer review, I suppose, and I cannot think of too many academics who would lend it any credence at all.
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        1. 12/3/2007 7:19 PM Haider Ala Hamoudi wrote:
          I guess most though not all American academics who study Islamic law today would say that in fact what the classical jurists said could be of value in making modern decisions.  But the funny thing is, they're mostly liberals and by that alone would take pretty strong issue with your characterization of classical Islamic law above.  On the other hand, the Wahhabi clerics would be entirely with you on what the classicists said, though you and they would have different opinions on what to do about that. 

          So to summarize, we have Abou El Fadl, to use the most prominent example, saying classical Islamic law is entirely consonant with liberalism and freedom of expression, you saying classical Islamic law is consonant with the current Sudanese law, and me sitting on the side wondering if perhaps each of your interpretations of Islamic law isn't quite determined by what the classical jurists thought, or what their texts say, but by other factors entirely; namely the role that you want shari'a to play in modern states (you, none at all, he, quite a bit).

          Thanks for the exchange, feel free to reply if you like but I must return to other work now. I did enjoy it. 

          Reply to this
          1. 12/3/2007 7:54 PM Arab Law Student wrote:
            It's an unfair characterization, and the comments by various Sudanese officials and attorneys in the Arabic and British press (in Arabic and English) belie your point about my ideological motivations for linking Sudanese national law to old Islamic doctrine.

            But as you did not respond to my main point about the possibility for old theory and doctrine to apply to unforeseen future factual circumstances, I will just stop here and await new posts.
            Reply to this
            1. 12/5/2007 11:45 AM Haider Ala Hamoudi wrote:
              Wow.  Well I tried being nice, and that hasn't really worked, your comments get nastier and nastier, so I'm not sure what to say, and retain some level of civility to my blog.  I deleted your comments at first, but now I'm not sure that's the best approach either.  So let's try this and please all bear with me as I work through how to handle difficult circumstances such as this.

              My dear Arab Law Student, you keep coming back to the same point, which is that old doctrine can significantly control or constrain modern decision making. You say that it is entirely obvious that doctrine (whether it be created by Washington or Jefferson in your case or Ibn Taymiyya in mine) can have an effect on how a contemporary decision maker decides a particular case (federal judge in your case, Sudanese or Saudi judge in mine).  You say, quite rudely and uncivilly that you don't know any academics who would give my views "any credence."  There are four problems with this.

              First, I'm not sure, while you dismiss my views as not being legitimate arguments, how "nobody agrees with you" is precisely a legitimate argument.  What does it prove about the content of the idea?

              Second, I'm the law professor, and I assure you that you are quite mistaken on whether or not other academics give my views credence.  Though I realize you referred to academics you know, and it is quite possible you know few enough academics as not to have a very good sample size, I will admit.

              Third, it may be that in your schooling you may have not yet had opportunity to peruse a quite large area of legal theory.  Apparently you remain quite unaware of the work of Karl Llwellyn, or Jerome Frank, or Felix Cohen, or know what the immensely influential school of Legal Realism was all about.  Legal Realists would say EXACTLY that what Jefferson or Washington said, or any rule they created, or any words in the constitution, do not constrain a federal judge IN THE SLIGHTEST.  That is, he might use the words, but he'll do what he thinks is right, the rules themselves, drafted by Washington, Jefferson, or anyone else, don't mean anything, they merely provide the rhetorical basis.  Switch the Sudanese judge and the American, that is, and require them to use the other's rules, and they can plausibly reach the same result they did, only the rhetoric changes.  I haven't gone that far, but certainly it would suggest a fair number of academics who don't have a problem believing that ABSOLUTELY NO doctrine "applies" to any factual circumstances, foreseen or unforeseen, in terms of constraining it as opposed to providing rhetorical cover.  Does everyone agree with this approach?  No.  Did it rock the academy so profoundly in the interwar years that large numbers of current American scholars are at least semi-Realists?  Undoubtedly.  So what I would suggest, my dear law student, is that you do some reading.  I suggest you start with Holmes' the Path of the Law, continue forward to Llwellyn and Pound's exchanges in the Columbia Law Review back in the 1920's, peruse Jerome Frank's Law and the Modern Mind, and do look at Felix Cohen's Transcendental Nonsense and the Functional Approach, where this idea of following a legal rule in any case is subjected to particular ridicule.  After this, please feel free to inform us all of any further determinations you might have of what academics might or might not give "any credence."  Again, I would never  expect every reader of this blog to know what Legal Realism is, but I do think that making a statement such as "I don't know any academics who would argue that old doctrine can't be applied to future factual circumstances" will subject one to a fair criticism when there are quite a few scholars who don't think any doctrine can be applied to any factual circumstances in terms of giving any indication how any case should come out.

              Finally, I find your tone uncivil, and distasteful.  I will therefore be happy to post any replies you might have, but I am going to require you, on this blog,  first, to identify yourself (identifiable name and email address), and second, to maintain standards of civility and decency that avoid ad hominem attacks and insulting irrelevancies (erroneous in your case).  If we can return to civility, I'll be happy to continue a discussion.  The same rules I will apply to all, mainly because I can't imagine that any of the commenters who have given me the many (other than yours, uniformly excellent, even if sometimes challenging) comments and questions I've received to date would have a problem with this.
              Clarifications on this rule to follow on a post on jihad to be written today.


              Professor Hamoudi


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  • 12/14/2007 5:49 PM Andrew March wrote:
    Two questions:

    1) Is it entirely fair (on the part of Lama Abu Odeh, for example) to hold classical Islamic law studies up against the modern messiness of national legislation? Islamic law is not just law as such, it is also a system of thinking about ethics, morality and justice. While many Muslims and non-Muslims see Islamic law as just a system of rules or rulings, it is also a repository for thinking about fundamental and less fundamental commitments. So, the question: is it possible to appreciate modern Islamic legal, ethical and political thought without understanding the classical context?

    2) Do you think it is possible for modern Muslims to un-self-consciously respond to and accommodate modernity in daily practice or even doctrine without at some point going back and theorizing systematically what this all amounts to? Many people have observed how European notions of tolerance and secularism developed *after* they were facts on the ground (Hegel's Owl of Minerva flying at dusk), but still the philosophical work of "rationalizing the real" and fitting it into a larger and more comprehensive understanding of fundamental commitment is important. Not only that, but it leaves plenty of room for passionate debate and argument about what we are committed to after all and what disagreements still exist.
    Reply to this
    1. 12/14/2007 7:01 PM Haider Ala Hamoudi wrote:
      Professor March, what an honor to hear from you.  Thank you for your comments.

      1. Let me respond to your first question by perhaps dividing the study of shari'a into two distinct areas.  One would be sort of a legal history, "this is what Muslims used to think in the context of particular medieval times."  Of course to hold that up against modern national legislation is senseless, I don't understand Lama Abu Odeh to be doing that, though I can't speak for her.  I certainly don't claim to do that.  I realize this isn't your question, but I thought I would make clear that I'm not taking the anti-intellectual position that study of history is a waste of everyone's time.

      As to whether or not one can appreciate modern Islamic legal, ethical and political thought without understanding the classical context, not only do I think it's possible, I think that understanding the classical context distracts from appreciating modern thought.  I think I understand the Wahhabi projection of Ibn Taymiyya quite well, from websites on him from pro-Saudi clerical voices to fatwas of Ibn Jabreen and Sheikh Baz, an anti-Shi'i polemicist whose ideas on Shi'ism are not precisely sophisticated.  Now I had the honor of sitting next to Dr. Sherman Jackson at a dinner you kindly arranged and discussed with him for twenty minutes the subject of Ibn Taymiyya.  Actually, that's not true, he talked, I asked questions and listened at the feet (figuratively) of one of America's most learned Muslim scholars. 

      The thing is the person he was describing bears no resemblance to the Wahhabi projection of the fellow.  Is there value, ethical and intellectual value in learning of the real Ibn Taymiyya?  Of course, I could have listened for another two hours.  Do I need to know that to understand Saudi clerical positions, or really the positions of large portions of the Sunni fringe on Shi'ism?  Clearly, I would argue, not.  Nothing Dr. Jackson says will I am sure stay the hand of the next Saudi guard who strikes a Shi'i for reciting an invocation at the Prophet's tomb.  I'm not suggesting Dr. Jackson thinks otherwise, this is not a criticism of him, only that if one wants to understand the relevance of Ibn Taymiyya in the precise context of the Wahhabi movement, a deep understanding of history is not a good way to go about it.  (Naturally Ibn Tyamiyya is invoked far beyond the limited Wahhabi movement, I'm using one example of the way in which he has appeared in modernity to demonstrate a larger point about the relative relevance of modern construction to historical reality).

      I could go on, I think Clark Lombardi's magnificent book on the Egyptian Supreme Constitutional Court's use of Article 2 of the Egyptian Constitution to declare invalid legislation on the basis of a conflict with shari'a (as permitted under Article 2) suffers from a similar flaw--its attempt to tie all of this back to siyasa shar'iyya as developed by our friend Ibn Taymiyya and Ibn Qayyim Al-Jawziyya.  The theory used, might I humbly submit, in a modern nation state, to enable a judiciary to void legislation issued in contravention of the Constitution has been developed from John Marshall, not Ibn Taymiyya.  Sure one can incorporate it because it seems rather convenient and then backdate it to siyasa shar'iyya and that's what courts do, claim authenticity of the truly inauthentic.  What I'd like to think scholars do is unmask and demystify to reveal a different reality.

      Finally, I guess I would reject reasonably categorically the idea (which I realize is not necessarily yours) that sharia is unique in incorporating intertwining ethics, morality and justice into law.  A number of conceptions of Western law would do the same, Ron Dworkin would certainly I think take that position.  But a realist and a positivist would contest the claim, in both domains.


      2.  Actually, I'm not really sure I agree about this second point, to the extent i am sure that I am grasping it.  Of course we Muslims are going to find bases in our foundational texts to accommodate modernity.  That tends to be easy, foundational text can be read in any number of ways. But as to whether or not we need to come to terms with all of Islamic doctrine and its deep history, I'm not sure most Muslims actually care.  I'm not sure anyone needs to explain away the centuries of Islamic slavery, to Professor Freamon's understandable dismay, a denial of history and a return to original sources read entirely ahistorically seems to satisfy most Muslims.  Stipulations in contract have disappeared entirely, on the basis of a completely ludicrous interpretation of Ibn Taymiyya (again) developed in the Majalla and later by Sanhuri. That's a primary focus of my most recent article.

      So I guess I'd say I don't think a systematic reappraisal of Islamic doctrine and history seems to be terribly important to come to terms with modernity.  Naturally squaring modern commitments with foundational text is fundamental.  I might add even that there needs to be faithfulness to some form of perceived historicity (what we think we always thought of as important remains important).  But because it's going to be based on community perceptions, I'd describe it neither as systematic or methodologically rigorous or faithful to doctrinal spirit as a historical matter, which is not to say that philosophically it can't be rigorous even if wildly ahistorical.

      Thanks again

      HAH

      Reply to this
  • 8/13/2008 11:55 PM A Courtney wrote:
    Dear Professor Haider Ala Hamoudi,
    I have recently read your blog as a part of my research and an attempt to understand Islamic legal theory. I applaud your efforts to deliver understanding on a subject through discussion that is based upon and provoked by your own opinions and understanding.

    I was not surprising to note your reference to Dworkin and you could add Mill when you consider classical legal theory, but I would submit the fuqaha of Sai’id b. al-Musayyib and Abu Bakr b. ‘abd al-Rahman ,who were noted for exercising intelligence in their judgments when interpreting and applying fundamental principles and concepts contained in the Qur’an. Dworkin and Mill commited their lives to the development of legal theory while Sai’id b. al-Musayyib and Abu Bakr b. ‘abd al-Rahman commited theirs to interpreting and applying a theory or a science that is the Qur’an.

    If the “right path” for Muslims (and I would suggest ALL, if interpreted correctly) is to be found in the Qur’an, then in western communities it is found in legal theory and the Courts of Equity, because both consider social and moral conscience albeit at different levels. The deficiency that exists within the law of Equity is that in reality it only deals with the financial aspects of the law as opposed to the Qur’an that relates holistically to one mans obligations to God and dictates his conduct towards his fellow man (not gender specific).

    As a Westerner, I am a believer that Qur’an is a truly superb document that has been interpreted by mere mortals that have inhibited its development and world wide application and acceptance. If Islamic law derives its power from the Qur’an and has developed in many ways ie. the interpretation and application of the term figh, which was originally used by Arabs for a camel expert in covering; he who distinguishes the she-camels that are lusting from those that are pregnant, to a recorded definition by Abu Hanifah as “a soul’s knowledge of its rights and obligations” as quoted by Kamal al-Din Ahmad al-bayadi in Isharat al-Maram min ‘Ibarat al-Iman, Cairo, 1949 at pp 28-29, then it is now time to consider once gender specific references to apply to all of God’s / Allah’s children. Men and women are equal in the eyes of the law, and the many customs and rituals appear to be based only on a males interpretation of the Qur’an.

    Is the Islamic law applied equally to all; and if accepted that women are discriminated by a mere mortals original interpretations or once relevant interpretations, when is it likely, if at all, that scholars and teachers of Islamic law will question its accuracy on this issue?
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