On the Fallacy of Islamic Law in Law Schools
There is something approaching PhD-mania in American law schools these days. Basically, once one has a PhD in something else, that makes them infinitely more attractive to the schools, in a way that tends to perplex me. I've got nothing against an economics PhD who holds a JD, and sure she might bring a different perspective to the teaching and study of law, but why anyone would deem it something close to necessary (at a lot of schools anyway, who shall remain nameless but who are basically those who aren't quite in the Golden Circle but fighting really hard to get there) puzzles me. Surely nobody in any economics department is going ga ga like this over the possibility of hiring JD's. I personally like the idea that those of us in the academy should spend some time in academia developing research with mentor guidance before becoming professors, but to me, that means enhancing JSD programs and getting law doctorates with other doctorates being a fair, reasonable, common enough exception. (And yes the JSD is the path I have chosen, and I supervise candidates and seek to expand those programs. I have no PhD in full disclosure, the JSD is the only doctorate I need I think.)
This is relevant to this blog, because whatever the merits of the PhD mania, I'm starting to think that the preference for PhD's in Islamic studies to teach Islamic law in American law schools is distorting, deeply so, fundamentally so, in a way that I think really makes one wonder what the hell we're studying when we study Islamic law. Allow me to explain, before the curses start coming in from every direction in the academic world, except maybe Georgetown, I don't know.
In Islamic studies departments, there's this notion of shari'a as this sort of idealized, highly stylized logic driven system that is sort of somewhere in the sky that nobody can see, and then there's fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there's actual law, which bears no necessary relationship to either. Or that was more or less what one of the most influential 20th century Islamicists, Joseph Schacht seemed to think. Now of course later scholars challenged these notions and paid more attention to what was actually done, and pointed out what can do this by looking at Ottoman records or fatawa or whatever, but really this idea of a theory, that is Islamic law, and then practice, which can be quite different, sort of remains I think. That's simplistic and reductive but I think reasonably accurate, Badouin Dupret has done a pretty good job of exposing this in a few pieces. Certainly shari'a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you're lucky they'll attempt to relate all of that to reality in a way that is, ummm, perplexing.
But the thing is, this division at least to this profound extent is really pretty discredited in our law schools outside of Islamic law. We wouldn't consider that law in the US context, certainly I wouldn't. I'm not sure what the hell it is, I look at it and scratch my head, and people say that shows I don't understand Islamic law. I guess, if this weird theoretical construct is what they're talking about, though I do know law, and I do know Islamic societies, and they certainly don't think this way. When some number of Muslims say they want the shari'a, they're not talking about whatever the hell this Islamic studies stuff is, they're talking about a legal reality, a real thing, to be implemented in the real world. If you started telling them there was this thing called shari'a which is God's perfection and then this thing called fiqh which is stylized and idealized but isn't something that one can think of as being capable of being applied in all its respects, you're going to get cut off right there. Nobody who advocates for shari'a believes that. Not today anyway. They will read the fiqh in a way that makes it applicable today, based on their own needs and aspirations, the elegance isn't the point, the incomparable reality of God's Will on earth is.
It doesn't mean older juristic opinions are irrelevant, to the extent that someone picks it up and seeks to apply it. I think they are very relevant, I've been convinced of that pretty recently. But only as applied, not as delivered. So by all means let's know what the dead guys say, but we don't need to be schooled in their period and understand them, to understand how they'll be used in the modern social order. To know that, we have to know the modern social order.
Now that doesn't mean that national laws don't mean anything or that everything is about the shari'a. I think that's wrong, it's far more pluralist than that. but what it does mean is that, as with any law or rule of social order, when you want to understand what the shari'a is, you have to see what the shari'a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law. this pie in the sky look at what the medievals said and paste it together to create some sort of system that is logical and elegant and pretty but perhaps entirely irrelevant to anyone actually making decisions, well ever since Oliver Wendell Holmes nobody I think takes that terribly seriously.
Except in Islamic law. If we want to learn about compatibility of Islamic law with democracy, we poke at this silly theoretical thing that just a minute ago we couldn't show had much relevance to the real world, or might in some respects but not others and in any event the theory is never sullied by the practice it is safely separable. Except that if you make the silly theoretical thing fit into some democratic mold, it's more or less irrelevant because like you just said that isn't the real world, it's separable. In the real Muslim world there are a few democracies out there. There's quite a few Islamist parties. They seem to have incorporated enough of the democratic lesson to be genuinely (really genuinely) outraged when the vote of the people is ignored once their side wins. Isn't that more important than that silly theory you keep poking around involving men who died about four hundred years ago? Shouldn't we look at their theories instead? Isn't THAT what law is? (You can disparage--and say they haven't incorporated liberal democratic theory at all, and there is some truth to that. All I am saying is that it is these groups and these people and the institutions we should look at, not the theoretical musings of jurists).
Look, I don't know how to square classical Islam with modern international law, and I don't care. Because I don't think most Muslims care. I think they have fully adopted the notion that jihad should be defensive, and they are again genuinely outraged when someone acts aggressively against them because they think it is wrong. Again, criticize, point out their notion of self defense is odd, there is LOTS of truth to that, I agree with much of it, but the discussion has to be on these people and their actions and their social order. That's what we understand law to be.
But the whole Islamic studies world has infected ours. I don't mind their doing what they do, I'm not anti-intellectual, surely this stuff is as worthy of study as any other. (I don't like the way they then feel qualified to opine on matters Islamic and of contemporary importance, because they don't really know the shari'a like Muslims understand it, but that's a separate point). What I do object to is its working its way into law school, so that then connections are made between some academically constructed theoretical bubble foreign to most Muslims and the actual workings on the ground, rather than just looking at the workings on the ground as they are, experiential decidedly illogical, selective, confused, often contradictory but deeply authoritative and legitimate, and most important, REAL.
If I stood here and wrote a book and said, here's some rules on company law. And then I dropped a footnote and said "these aren't applicable today and never have been, because if anyone took them seriously you couldn't really have a company.", hell a second year law student has been indoctrinated enough into our system to know how to respond to that. Huh? Professor, if it's not relating how companies work, it's not law, and if it's not how they used to work, it's not legal history, so what in the hell are you talking about? But that's not an uncommon footnote in law books on "Islamic law", believe me. Note--what I'm about to say to you has no relevance to the real world, not then, not now, not ever. It can't work, so don't look for it there. But man is it elegant and logical and pretty, and so I'm going to tell you all about it because that is what the shari'a is all about.
Enough of this. We're in law school. Let's do law.
HAH
This is relevant to this blog, because whatever the merits of the PhD mania, I'm starting to think that the preference for PhD's in Islamic studies to teach Islamic law in American law schools is distorting, deeply so, fundamentally so, in a way that I think really makes one wonder what the hell we're studying when we study Islamic law. Allow me to explain, before the curses start coming in from every direction in the academic world, except maybe Georgetown, I don't know.
In Islamic studies departments, there's this notion of shari'a as this sort of idealized, highly stylized logic driven system that is sort of somewhere in the sky that nobody can see, and then there's fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there's actual law, which bears no necessary relationship to either. Or that was more or less what one of the most influential 20th century Islamicists, Joseph Schacht seemed to think. Now of course later scholars challenged these notions and paid more attention to what was actually done, and pointed out what can do this by looking at Ottoman records or fatawa or whatever, but really this idea of a theory, that is Islamic law, and then practice, which can be quite different, sort of remains I think. That's simplistic and reductive but I think reasonably accurate, Badouin Dupret has done a pretty good job of exposing this in a few pieces. Certainly shari'a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you're lucky they'll attempt to relate all of that to reality in a way that is, ummm, perplexing.
But the thing is, this division at least to this profound extent is really pretty discredited in our law schools outside of Islamic law. We wouldn't consider that law in the US context, certainly I wouldn't. I'm not sure what the hell it is, I look at it and scratch my head, and people say that shows I don't understand Islamic law. I guess, if this weird theoretical construct is what they're talking about, though I do know law, and I do know Islamic societies, and they certainly don't think this way. When some number of Muslims say they want the shari'a, they're not talking about whatever the hell this Islamic studies stuff is, they're talking about a legal reality, a real thing, to be implemented in the real world. If you started telling them there was this thing called shari'a which is God's perfection and then this thing called fiqh which is stylized and idealized but isn't something that one can think of as being capable of being applied in all its respects, you're going to get cut off right there. Nobody who advocates for shari'a believes that. Not today anyway. They will read the fiqh in a way that makes it applicable today, based on their own needs and aspirations, the elegance isn't the point, the incomparable reality of God's Will on earth is.
It doesn't mean older juristic opinions are irrelevant, to the extent that someone picks it up and seeks to apply it. I think they are very relevant, I've been convinced of that pretty recently. But only as applied, not as delivered. So by all means let's know what the dead guys say, but we don't need to be schooled in their period and understand them, to understand how they'll be used in the modern social order. To know that, we have to know the modern social order.
Now that doesn't mean that national laws don't mean anything or that everything is about the shari'a. I think that's wrong, it's far more pluralist than that. but what it does mean is that, as with any law or rule of social order, when you want to understand what the shari'a is, you have to see what the shari'a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law. this pie in the sky look at what the medievals said and paste it together to create some sort of system that is logical and elegant and pretty but perhaps entirely irrelevant to anyone actually making decisions, well ever since Oliver Wendell Holmes nobody I think takes that terribly seriously.
Except in Islamic law. If we want to learn about compatibility of Islamic law with democracy, we poke at this silly theoretical thing that just a minute ago we couldn't show had much relevance to the real world, or might in some respects but not others and in any event the theory is never sullied by the practice it is safely separable. Except that if you make the silly theoretical thing fit into some democratic mold, it's more or less irrelevant because like you just said that isn't the real world, it's separable. In the real Muslim world there are a few democracies out there. There's quite a few Islamist parties. They seem to have incorporated enough of the democratic lesson to be genuinely (really genuinely) outraged when the vote of the people is ignored once their side wins. Isn't that more important than that silly theory you keep poking around involving men who died about four hundred years ago? Shouldn't we look at their theories instead? Isn't THAT what law is? (You can disparage--and say they haven't incorporated liberal democratic theory at all, and there is some truth to that. All I am saying is that it is these groups and these people and the institutions we should look at, not the theoretical musings of jurists).
Look, I don't know how to square classical Islam with modern international law, and I don't care. Because I don't think most Muslims care. I think they have fully adopted the notion that jihad should be defensive, and they are again genuinely outraged when someone acts aggressively against them because they think it is wrong. Again, criticize, point out their notion of self defense is odd, there is LOTS of truth to that, I agree with much of it, but the discussion has to be on these people and their actions and their social order. That's what we understand law to be.
But the whole Islamic studies world has infected ours. I don't mind their doing what they do, I'm not anti-intellectual, surely this stuff is as worthy of study as any other. (I don't like the way they then feel qualified to opine on matters Islamic and of contemporary importance, because they don't really know the shari'a like Muslims understand it, but that's a separate point). What I do object to is its working its way into law school, so that then connections are made between some academically constructed theoretical bubble foreign to most Muslims and the actual workings on the ground, rather than just looking at the workings on the ground as they are, experiential decidedly illogical, selective, confused, often contradictory but deeply authoritative and legitimate, and most important, REAL.
If I stood here and wrote a book and said, here's some rules on company law. And then I dropped a footnote and said "these aren't applicable today and never have been, because if anyone took them seriously you couldn't really have a company.", hell a second year law student has been indoctrinated enough into our system to know how to respond to that. Huh? Professor, if it's not relating how companies work, it's not law, and if it's not how they used to work, it's not legal history, so what in the hell are you talking about? But that's not an uncommon footnote in law books on "Islamic law", believe me. Note--what I'm about to say to you has no relevance to the real world, not then, not now, not ever. It can't work, so don't look for it there. But man is it elegant and logical and pretty, and so I'm going to tell you all about it because that is what the shari'a is all about.
Enough of this. We're in law school. Let's do law.
HAH
Salaam brother,
It is unfortunate that many law schools see a need to put these ancient puzzles together instead of discussing 'applied' Islamic Law somewhere. I liked that fact that there a couple Law schools actually looking at the intersection of Islamic law and secualr law in places like Malaysia/Indonesia instead of focusing on imagined concepts. I think this does a huge detriment to Muslims as well and doesn't help non-Muslims understand what shari'a might actually mean.
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Alaikum Assalam wa Rahmat Allah. Thanks for the email, I've been enjoying paging through your blog. Quite active!
There is definitely some good work being done in law schools, I completely agree. Mark Cammack on Indonesia, Bernard Freamon on slavery which is legal history but he does NOT shy away from the sordid reality of the practice in favor of juristic rulings that he shows to be irrelevant, Russ Powell has just done a great piece on Pakistan (or partly on it), Clark Lombardi on Egypt, and absolutely more theoretical approaches such as those of Abdullahi An Naim and Mohammad Fadel sparkle and enlighten when they seek to address how all of the religio-legal theory might work in a real world, where the law actually exists. Which proves a deep background in Islamic studies and a PhD in the field of Islamic studies CAN actually be brought to good use.
But generally speaking, if you talk about Islamic law through the lens of an Indonesia court, for example, as Mark Cammack does, it's not considered "real" Islamic law. "Real" Islamic law is something else. That something else is not even moderately reflective of "Islamic law" as courts see it, as lawmkaters see it, as advocates of shari'a within Muslim societies see it, it's a completely academic construct. What is dismissed as the impure hybrid to me is completely and entirely what Islamic LAW is in our times, to as you point out, huge numbers of Muslims. And so it's time in our law schools to go our own way, and study Muslim law as we would any other legal system.
Thanks again for the message.
HAH
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Salaam. Just a few days ago I approached several Muslim writers to inform them that something was in the works to formulate a Muslim think-tank of sorts here in the US. The first responder out of the gate felt the need to adviseme that the think-tank "had to be based on Quran and Sunna". I thought that was funny. Without knowing what the organization's focus would be he felt the need to sloganize. He went on further to talk about how Muslims in this land had to be very careful for whom they vote because many candidates support either gay rights, pro-choice stances or both. When I questioned how God informs us to treat humanity he had no direct response. When I asked if men performed the punishment on Lut's people or if God did, he did not answer directly again. What was funny was that he apparently suggests, at least, according to his advice, that there should be some form of maltreatment or no treatment toward gays or pro-choicers. However he didn't take the time to spell out any sanctions meted out to gays or pro-choicers in our time or in history. I at least expected him to bring the 'four witnesses of the act' ruling or something. But I got nothing. This is what the fallacy of Islamic Law has produced?
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