Why Teach Islamic Law? Lessons from a conference at Harvard
Okay, first, my book is now in stock at Amazon (no more preordering) so make sure to pick it up. Here's the link. Here's the latest review, from salon.com. Fairly positive, though the earlier reviews were even better. Anyway, go buy it, and then come back here and read on.
So we had a rather large convention of the folks who teach Islamic law at U.S. Law Schools, or as I like to call them, the Tom Tancredo fan club, which I found magnificently enlightening. Given some of my earlier criticisms of the dominant modalities in Islamic law pedagogy, I thought there'd be disputes, and there were, though in an entirely collegial fashion. And I learned something from the experience, too. But let's get to the central disputes, where I seemed to always find myself involved, because I think they help highlight some of the tensions in what we are or should be trying to do in teaching Islamic law. Or quite frankly if we should be doing it at all.
So early on in the first session, one of the old lions of our field asked me pointedly, as I was telling all of them the entire misguided nature of their focus on medieval texts that don't drive the basis of decision making in any Islamic context that I could think of in the modern era, "do you really think you're reflecting the consciousness of what these judges are doing?" In other words, as I understood the question, when I focus on what actually drives decisions (Muslim worldview, cultural factors, social factors, political factors) rather than doctrine, am I reflecting what these very sincere and smart men (they're always men) claim to be trying to do? Aren't they really making an effort to bring classical law to the modern era? Don't we deserve to pay some attention to that?
I mumbled something I can't remember, he was awfully nice and I hardly wanted to be irreverent, but I know what I was thinking? What? Why the hell should I as a lawyer care what the judge is thinking? What am I, cultural ambassador to the Oriental Lands? Oprah Winfrey of the Arab judiciary? Who cares what he thinks he's doing? I', a lawyer, I don't care about consciousness, I care about outcomes. What is he going to do, not what he happens to think about it. And if I can tell you that without going to very much doctrine (obviously some might count), and generally I can, then what the hell do I care about the rest of it?
Mark Cammack, expert on Islam in Indonesia (want to know it, look him up, he's at Southwestern) has said my approach tends to be "jaded" by practice, and I think he's right, though I tend not to agree with the connotation of the term "jaded". "Enlightened" maybe. We are teaching law to people who are going to practice it, after all. Anyway, I kept thinking of a hypothetical client from Lehman Brothers or something. Does that guy care how the judge manages to massage medieval texts to get to an answer? Does that guy care whether he's doing it sincerely, or not? Or whether he cares about doctrinal integrity or not? He doesn't. I've represented these people, he doesn't give a damn. He wants to know one thing, will I win or lose? Outcomes, that's all that matters.
So say you have a client. He is charged with violation of a forced labor statute in Egypt. He wants to challenge the law as a violation of the shari'a pursuant to Article 2 of the Constitution, requiring all laws to conform to shari'a. Guess what? I don't care what Shafi'i jurists said. I don't care what Hanafi fiqh is. I couldn't be made to worry about Ibn Rushd. Because the argument is going down, and I don't need to crack a book, even the Qur'an, to know that. As a good lawyer, I tell my client, we aren't making that claim, it stinks. It doesn't stink because of classical doctrine (hell it might, it might not, ask Mohammad Fadel at Toronto or Bernard Freamon at Seton Hall, they would really know), but if you understand modern Muslims in Egypt, and particularly the composition of that Court, you know what's going to happen. And if you can't predict the outcome except by going to classical texts, well then quite frankly you're a pretty bad lawyer. You should be able to tell your client in a minute he will lose that case bad. (You can analogize to the US. Any American lawyer out there think that given the Supreme Court's new post Lopez scrutiny on Commerce Clause legislation that they can make a successful challenge to the 1964 Civil Rights Act? Do you have to read Lopez, Morrison and the rest of them to know the answer? I haven't read any of them in years, and I can tell you the answer. Any good lawyer can. Won't happen. because people would and should go all John Brown on the Court if they even tried it.)
So if I know the answer, and the answer really doesn't depend on doctrine, then what do I care whether or not the judge is flailing around thinking it is? What's the point of recapturing the judge's consciousness?
And here I think is where the answer gets a little more subtle and interesting, and where I learned something from the conference. Listen, I am told. You can't actually walk in front of the Court and say "what, are you people racists? You're not dropping the '64 Civil Rights Act, we know that." That also makes you a bad lawyer. So what do you do? Well you talk that talk that's going to sway that court. You learn the lingo, you develop the right arguments, you distinguish and push and pull and analogize to get the judge to see it your way. And maybe he thinks it's all "legal", that no other considerations matter, maybe he doesn't, or maybe there's some gut combination, who cares. But that doesn't mean you don't have to understand what within the system is and is not an acceptable argument to him. What will and will not work. Law school is all about that, molding the position you want to win into lingo the court can buy.
Now of course I knew that,and so of course in say, contracts, I teach both. Here's doctrine, here's economics, here's politics, here's ways it can fit together. here's what courts say they do. HEre's what they really do. All important and necessary. But in Islamic law, I've always thought, what the hell is the point of that? They aren't going before a court in Egypt to make an Article 2 argument. they aren't going to be mujtahids making judgments about the permissibility of whatever.
Why are they taking this? Why are they doing this class? Because they want to understand what this Islamic law stuff is. Partly how does Bin Laden make hsi argument, but what gives credence to the argument, what supports it, what pushes against it, etc. How supported is that argument? And to know this,well if you're a Realist, as I am, the doctrine is the sideshow, I use it as the straw man, here's what he says, here's where he gets it from, here's other interpretations, all can be made to work, so let's really talk about where this comes from. LEt's talk about Muslim rage(justifiably or not, strawman or not, you decide, I don't care, truth doesn't much affect doctrine) let's talk about economics. This is what drives it, so let's look at legal evolution as a product of other forms of social evolution and change.
Now I still think I'm right, and I still think that's the best way to do a course like this. I think that's what students want too.
But others had a different view. Their goal, they said, was to show how legal argument works in a totally and completely different system. And to demonstrate it's no less subjective, no less prone to massaging and manipulation, no more certain and deductive, than the common law. Call it reason, call it God, write a constitution, go by a revealed Holy Book, same thing happens. Somebody somewhere has to take the thing and make it apply in the real world, and once that happens, the fun starts. So who cares how doctrine then actually works itself out, the argument goes, who cares about outcomes, it is said, I'm not trying to show any of that, what I'm trying to show is how uncertain the interpretive exercise is, in any system, and the nature of legal argument arising therefrom. The actual outcomes are then the sideshow, legal argumentation the main event.
And if that's the case, then yes, the medievals mean more. not so much "what did they mean in their time", who cares, still, Indonesian judges as Mark points out aren't necessarily more schooled in that than I am (and I'm not schooled in it) but yeah you have to take the modern Muslim worldview and understand how to take that onto the text and make the argument that works with the judge. Absolutely. You still need to be "real", to understand the other stuff, but it's less important to the central goal, which is to show arguments can always be made.
It's just then, the only thing is it's effectively a legal philosophy course. It's no more or less than if you took imperial Chinese law or Roman law and did the same thing. And while it's pedagogically fine, I'm not sure it does what at least I want to do, which is to explain how Muslim doctrine got to be the way it is, and where it might be headed. because to me, that's what all Americans, and especially American lawyers and policy makers, have to know.
So I still don't agree with my elder brethren, though I have atleast begun to understand some of what some of them are trying to do. Just some, not all. More than this I will not concede.
HAH
So we had a rather large convention of the folks who teach Islamic law at U.S. Law Schools, or as I like to call them, the Tom Tancredo fan club, which I found magnificently enlightening. Given some of my earlier criticisms of the dominant modalities in Islamic law pedagogy, I thought there'd be disputes, and there were, though in an entirely collegial fashion. And I learned something from the experience, too. But let's get to the central disputes, where I seemed to always find myself involved, because I think they help highlight some of the tensions in what we are or should be trying to do in teaching Islamic law. Or quite frankly if we should be doing it at all.
So early on in the first session, one of the old lions of our field asked me pointedly, as I was telling all of them the entire misguided nature of their focus on medieval texts that don't drive the basis of decision making in any Islamic context that I could think of in the modern era, "do you really think you're reflecting the consciousness of what these judges are doing?" In other words, as I understood the question, when I focus on what actually drives decisions (Muslim worldview, cultural factors, social factors, political factors) rather than doctrine, am I reflecting what these very sincere and smart men (they're always men) claim to be trying to do? Aren't they really making an effort to bring classical law to the modern era? Don't we deserve to pay some attention to that?
I mumbled something I can't remember, he was awfully nice and I hardly wanted to be irreverent, but I know what I was thinking? What? Why the hell should I as a lawyer care what the judge is thinking? What am I, cultural ambassador to the Oriental Lands? Oprah Winfrey of the Arab judiciary? Who cares what he thinks he's doing? I', a lawyer, I don't care about consciousness, I care about outcomes. What is he going to do, not what he happens to think about it. And if I can tell you that without going to very much doctrine (obviously some might count), and generally I can, then what the hell do I care about the rest of it?
Mark Cammack, expert on Islam in Indonesia (want to know it, look him up, he's at Southwestern) has said my approach tends to be "jaded" by practice, and I think he's right, though I tend not to agree with the connotation of the term "jaded". "Enlightened" maybe. We are teaching law to people who are going to practice it, after all. Anyway, I kept thinking of a hypothetical client from Lehman Brothers or something. Does that guy care how the judge manages to massage medieval texts to get to an answer? Does that guy care whether he's doing it sincerely, or not? Or whether he cares about doctrinal integrity or not? He doesn't. I've represented these people, he doesn't give a damn. He wants to know one thing, will I win or lose? Outcomes, that's all that matters.
So say you have a client. He is charged with violation of a forced labor statute in Egypt. He wants to challenge the law as a violation of the shari'a pursuant to Article 2 of the Constitution, requiring all laws to conform to shari'a. Guess what? I don't care what Shafi'i jurists said. I don't care what Hanafi fiqh is. I couldn't be made to worry about Ibn Rushd. Because the argument is going down, and I don't need to crack a book, even the Qur'an, to know that. As a good lawyer, I tell my client, we aren't making that claim, it stinks. It doesn't stink because of classical doctrine (hell it might, it might not, ask Mohammad Fadel at Toronto or Bernard Freamon at Seton Hall, they would really know), but if you understand modern Muslims in Egypt, and particularly the composition of that Court, you know what's going to happen. And if you can't predict the outcome except by going to classical texts, well then quite frankly you're a pretty bad lawyer. You should be able to tell your client in a minute he will lose that case bad. (You can analogize to the US. Any American lawyer out there think that given the Supreme Court's new post Lopez scrutiny on Commerce Clause legislation that they can make a successful challenge to the 1964 Civil Rights Act? Do you have to read Lopez, Morrison and the rest of them to know the answer? I haven't read any of them in years, and I can tell you the answer. Any good lawyer can. Won't happen. because people would and should go all John Brown on the Court if they even tried it.)
So if I know the answer, and the answer really doesn't depend on doctrine, then what do I care whether or not the judge is flailing around thinking it is? What's the point of recapturing the judge's consciousness?
And here I think is where the answer gets a little more subtle and interesting, and where I learned something from the conference. Listen, I am told. You can't actually walk in front of the Court and say "what, are you people racists? You're not dropping the '64 Civil Rights Act, we know that." That also makes you a bad lawyer. So what do you do? Well you talk that talk that's going to sway that court. You learn the lingo, you develop the right arguments, you distinguish and push and pull and analogize to get the judge to see it your way. And maybe he thinks it's all "legal", that no other considerations matter, maybe he doesn't, or maybe there's some gut combination, who cares. But that doesn't mean you don't have to understand what within the system is and is not an acceptable argument to him. What will and will not work. Law school is all about that, molding the position you want to win into lingo the court can buy.
Now of course I knew that,and so of course in say, contracts, I teach both. Here's doctrine, here's economics, here's politics, here's ways it can fit together. here's what courts say they do. HEre's what they really do. All important and necessary. But in Islamic law, I've always thought, what the hell is the point of that? They aren't going before a court in Egypt to make an Article 2 argument. they aren't going to be mujtahids making judgments about the permissibility of whatever.
Why are they taking this? Why are they doing this class? Because they want to understand what this Islamic law stuff is. Partly how does Bin Laden make hsi argument, but what gives credence to the argument, what supports it, what pushes against it, etc. How supported is that argument? And to know this,well if you're a Realist, as I am, the doctrine is the sideshow, I use it as the straw man, here's what he says, here's where he gets it from, here's other interpretations, all can be made to work, so let's really talk about where this comes from. LEt's talk about Muslim rage(justifiably or not, strawman or not, you decide, I don't care, truth doesn't much affect doctrine) let's talk about economics. This is what drives it, so let's look at legal evolution as a product of other forms of social evolution and change.
Now I still think I'm right, and I still think that's the best way to do a course like this. I think that's what students want too.
But others had a different view. Their goal, they said, was to show how legal argument works in a totally and completely different system. And to demonstrate it's no less subjective, no less prone to massaging and manipulation, no more certain and deductive, than the common law. Call it reason, call it God, write a constitution, go by a revealed Holy Book, same thing happens. Somebody somewhere has to take the thing and make it apply in the real world, and once that happens, the fun starts. So who cares how doctrine then actually works itself out, the argument goes, who cares about outcomes, it is said, I'm not trying to show any of that, what I'm trying to show is how uncertain the interpretive exercise is, in any system, and the nature of legal argument arising therefrom. The actual outcomes are then the sideshow, legal argumentation the main event.
And if that's the case, then yes, the medievals mean more. not so much "what did they mean in their time", who cares, still, Indonesian judges as Mark points out aren't necessarily more schooled in that than I am (and I'm not schooled in it) but yeah you have to take the modern Muslim worldview and understand how to take that onto the text and make the argument that works with the judge. Absolutely. You still need to be "real", to understand the other stuff, but it's less important to the central goal, which is to show arguments can always be made.
It's just then, the only thing is it's effectively a legal philosophy course. It's no more or less than if you took imperial Chinese law or Roman law and did the same thing. And while it's pedagogically fine, I'm not sure it does what at least I want to do, which is to explain how Muslim doctrine got to be the way it is, and where it might be headed. because to me, that's what all Americans, and especially American lawyers and policy makers, have to know.
So I still don't agree with my elder brethren, though I have atleast begun to understand some of what some of them are trying to do. Just some, not all. More than this I will not concede.
HAH
I'm afraid I don't see the argument in this against teaching classical Islamic legal methods and doctrines, but merely the argument against only teaching that and teaching that qua "Islamic law simpliciter." First of all, from my outsider's perspective it seems that training litigators is just *one* function of law schools. It strikes me that lots of sophisticated philosophy, social science and cultural studies gets done at law schools which are of no tangible use to helping clients get out of tax jams. Thus, there are many purposes to studying Islamic law, because fiqh is not just a legal system applied in courts but also a system of arguing about applied ethics. Furthermore, it would seem that according to your own criteria it would depend strongly on the country you are talking about. Would your remarks about Egypt apply equally to Saudi Arabia? Second, I think you straw manned the "judge's conscience" argument a bit. As I understand it, the argument is not that any given judge has a higher order desire of which he is aware to approximate the classical judgments, but merely that he is aware of that tradition and arguments derived from it might have a particularly strong claim to validity not in a transcendental sense but in the precise, tangible, discursive situation that is a faux-Islamic courtroom - or moral debate with a contemporary normatively committed Muslim. In other words, I simply can't see the objection to studying classical Islamic law and theology as a necessary background to studying modern legal, political and ethical thought in all its messiness and complexity. Why should we treat Islam differently than liberalism, Catholicism or American constitutionalism, all fields in which the greatest experts have to study the origins and traditions as well the contemporary snapshot. Finally, I can't help noticing that this "classical tradition is irrelevant" argument is not always consistently applied. That is, modern scholars opposed to seeing contemporary Islamic actors as reducible to the classical doctrines have no reservations about drawing from classical doctrines to point out where modern Islamists are innovating and thus "are not as Islamic as they think." (See: FGM, terrorism, methodology, etc.) In short, it seems like that last thing you would want is more dilettantes running around who think they can read a modern manual and wax wise about "Islamic law."
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Ah, but I completely see where Haider is coming from in a practical teaching perspective. The simple truth is that in US law schools, there is no requirement to understand the "origins and traditions" of liberalism, Catholicism, or American Constitutionalism. In fact, having studied American Constitutional history extensively in undergrad, I was somewhat appalled at how little of the historical reference was brought into my Constitutional Law class. And at no time was it expected or even hinted at that a law student would need to know the history of the US constitution in order to learn how to apply it in actual practice. In fact, historical interpretation being a school of interpretation for the constitution, one would think there would be a focus on that history. Instead, the doctrine was merely introduced, along with other possible methods of interpretation.
Connected to that, I think the days of law school being an education that individuals after training in "sophisticated philosophy, social science, and cultural studies" are long gone. Can you still take classes in some (but definitely not all) of these areas at a modern US law school? Sure. But the attendance for these classes is low. I took Jurisprudence in law school. It was a very deep, very thought-provoking, very worthwhile class. It also had 6 students. Law students today don't go to law school in the US to improve their knowledge or gain a better handle on how to address ethical issues facing society. They go to law school to practice law. Now, they may want to practice law to better society (I wish there were more students that wanted this), but they are planning to do that through the actual practice of law, not through learning about non-practical legal models that don't address reality.
Now, I'm not quite the realist that Haider is. I guess I'm young enough to have some core of an idealist left in me. I wish more people would go to law school to better educate themselves, to seek ways to address social issues outside of the courtroom, to understand people with different viewpoints than their own. But given the difficulty of getting into law school and the cost associated with it, that just isn't the case. Which means that while I might love to take a class on classical Islamic Law, I completely agree with Haider that the average law student is going to leave that class saying "how did this help me prepare for the practice of law" and from what I've seen of some traditional Islamic Law courses, the answer would be "it didn't" - but that's just my two cents!
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I think Wes is entirely right--the question should be reversed when we talk of American Constitutionalism and Islamic Law. If we start from the standpoint of whether or not they should be taught differently, I'd say certainly not. But I know very little constitutional history. And I don't think you need to know very much to be a first class constitutional lawyer, an expert on the Constitution, solicitor general of the United States, in fact. Of course you need to know some, you need to know it like an economist or a physicist needs to know math, it's an instrument, a tool, for you to do your thing. But you don't really need to understand it beyond that. And so as a former physics person, when I talk math, the mathematicians put their hands in their heads and start shaking uncontrollably. Very similar, as I see it, to the way that historians react to the arguments made in courts respecting constitutional history. It's not history, it's the use of history to achieve other ends. As a commercial lawyer, I don't use history, but I do use economics, and you should see the reactions of my brother, the soon to be economics professor at Duke. And yet I know what I need to know to do my job.
However, I might be less instrumental than both of you, in that it's not just that students want to know "how does this help me get ahead" but rather, what the nature of law is. My problem has largely to do with how you are choosing to define what constitutes expertise in a body of law. So I think the constitutional lawyer is an expert with his pedestrian knowledge of history because he understands it well. Why? Because he wins cases in it all the time, he's Solciitor General. Or whatever. It's not just guys getting out of tax jams, it's doctrine concerning the right to bear arms or to have an abortion, all of it, is determined through these processes. He can be a selfless do gooder or a cynical corporate fatcat, it's all the same process. And to me, that is what the law is. Precisely the same thing applies to the Indonesian constitutional judge seeking to apply shari'a, he doesn't have this background in all these wonderful things, yet he is the expert. He is the guy making the decision. Now it seems both of you find this excessively instrumental, and prefer the law to rest on some higher plane, as part of some transcendental system that includes ethics and philosophy and cultural studies and all sorts of things, some thing up in the sky with some sort of internal coherence that I can't really see, or touch, or taste, or measure, but it's supposedly there, and unless one truly gets their hands into it and understands this system, they aren't really getting it. They might think they get it from the cases they win, from the arguments they put forward that gain popular traction, from appointments they receive to serve on the bench, but actually they are, to quote, "dilettantes running around who think they can read a modern manual and wax wise about 'Islamic law'".
I reject this conception. To me, the guy who wins the cases, who predicts the outcomes, who knows what is going to be decided and how, if there is room to move the doctrine in a particular case and what has to be used to get that desired result, that is the expert. The rest of this isn't law, I don't know what it is, but since it has nothing to do with how outcomes are determined, both for the guy in the tax jam and for the group interested in seeing the Second Amendment mean a right to own whatever, it's not law. And yes absolutely that is going to be region and country dependent, I'm not sure what that proves other than that the same law as applied will come out differently in different places. Which every good lawyer knows, since every good lawyer knows how to forum shop. BY the way, this applies well beyond litigation. If we ask a damn good corporate lawyer, why are you fighting so hard for an arbitration clause? Let's just allow an Indonesian court to decide the question, so long as New York LAW applies it's all that matters. I think she will have an excellent response for you, having to do with the necessity of knowing time and place and context when handling any legal question.
A couple of final points. First I agree on the consciousness of the judge. My point was that at first I thought the question silly, and then I thought the better of it because it's true that trying to understand what is going to persuade the judge does depend on how he approaches the questions himself. I had meant to be gracious to the questioner, a lion in our field, not to point out his error. Now I feel bad I wasn't clear enough.
Second, I don't see reformist inconsistency. The argument is this: nobody applies classical doctrine. Nobody. We'd be bankrupt tomorrow if we even dreamed of it. It's gone. Islamists can take over Egypt, and if my client asked me, how does this affect the Civil Code, I'd tell him, it won't. Not in any real way. Now the reformist criticism is then to say "you keep insisting on classical doctrine to cover situation X. But the problem is you aren't consistent in your methodologies. You don't always apply classical doctrine. So stop pretending you do, and stop insisting on this as the essence of legitimacy when it comes to polygamy and then ignoring that essence when it's slavery (or FGM or terrorism or whatever), and let's have the normative debate we are supposed to be having without your forcing it into some notion of doctrinal legitimacy which is essentially a fantasy of your own making. You are using a false construction of doctrinal integrity to delegitimize alternative positions." It's sort of a Critical Legal Theory argument. Or that's how I understand it, anyway.
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Well then I guess the next question is: How many American law schools are actually preparing students to practice law in Middle Eastern countries? If that is the purpose of teaching Islamic law then I would fully agree with these remarks. But I presume that at the elite law schools you are talking about (this started off with your Harvard conference) the purpose of having people who teach Islamic law is a more philosophical, appreciative or scholarly one. Now...where the purpose is to train people who are going to be working in finance or on contracts in the Middle East (or divorce and custody cases, etc etc), first of all which are the schools who teach for this purpose and in THESE places is it still the case that they are cracking open al-Muwatta to teach "Islamic law"? That would obviously be unjustifiable.
Another question: It is my understanding that in Middle Eastern law schools, even the secular kulliyaat al-huquq teach courses in fiqh both for "heritage" purposes and to background those areas of the law codes which are somewhat shari'a derived. Is this not the case? That would strike me as the appropriate model for US law schools to approximate if practicality is the objective.
I guess what strikes me as the obvious comparison is the teaching of Roman law in law schools. To my knowledge the L1 curriculum in European law schools always begins with a course in Roman law, understanding that this is not the exact content of the Civil Code that is applied in countries based on it. Wouldn't a Roman Law class at an American university be subject to the same criticism that you direct at the teaching of Islamic law? (Come to think of it, I remember taking a Roman Law class as an undergrad, although it was in the Classics Dept, not Law.)
So I guess what I would like really know is whether anyone is actually out there teaching Islamic Law at an American university as Contemporary Actually Applied Middle Eastern Law? If not, then you would have to object similarly to any other superfluous, non-applied, non-practical course at a law school.
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I don't think it has to do with where it's taught. It has to do with what one's conception of law is. Adopting the ideas of Holmes, Cohen, Llwellyn, Frank and their ilk (all highly respected, all worked at top law schools), to me the law is no more and no less than its application in the real world. It's not "scholarly law" to start to play around with texts that say stuff (two houses--Islam and war) that make no sense, made no sense, and will so far as we can tell never make sense in terms of their ability to relay with even modest accuracy the reality of the Muslim world (or never until the Mahdi's return, but that's another matter). It's not a higher form of law reachable by our societial elites. It's just not law. If it's not reflecting the social order, the outcomes of disputes within the social order, prdicting the development of the social order, it's something else. I don't think that conception has to do with whether one teaches at Yale or Podunk U, there are scholarly ways to approach the law under that conception, and there are nonscholarly ways. You can worry about how to perfect a security interest on a power plant, or you can ask, why is it that the developing world has shown such hostility towards the easy perfection of security? What biases are being revealed by this reluctance? What does it portend for future treaty development? None of which has anything to do with medieval texts, and none of which is "unscholarly." That's how I see constittuional law from the most elite institution to the least elite being studied in large part.
Umm, I don't think Middle Eastern educational systems are really the sorts of things we should be emulating. Some really good people graduate from them, but I think in spite of rather than because of anything they've been subjected to. I work with too many ofthem, I shouldn't say much more.
I know little of Roman law, and so I hesitate to venture too deeply into this. I will say though that a law professor from a very elite institution, and an expert in Roman law, who co-chaired a colloquium that I attended last fall, did oppose clearly the study of Roman law in US law schools, as opposed to in classical studies departments. So it's not unheard of to take this position. More centrally, there is a huge difference between a legal system that does not operate any longer and one that does. People take Islamic law where they won't take imperial Chinese law for one reason--they want to know where Bin Laden gets his ideas from. Or where the veil comes from. Or whether or not there is any chance of compatibility of Islam with democracy. And there are answers to those questions, all of whcih are legal, all of which can be approached in the most scholarly of manners, and none of which has anything to do with Malik's Muwatta.
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Your argument rests on two points, both of which are contestable:
1. The concept "law" has a single, defined content which must be strictly applied to every use of the word "law".
2. Modern Islamist actors (judges, activist, lame-o wannabe "ulama", Usama) claim to be motivated by religion/God/Islam but we in fact know that they are motivated by frustration and generic anti-imperialism.
1. Now, as to the first, you say "the law is no more and no less than its application in the real world...if it's not reflecting the social order, the outcomes of disputes within the social order, predicting the development of the social order, it's something else."
Now, as you know, I am not a lawyer so I am not going to say that there is a better conception of the law we should be adopting. However, as a political theorist I do know that "Law" is a concept like any other, which means it is a word, which means that it requires defining, which means that it is subject to being defined in multiple ways. What you are offering is a very specific conception of the larger concept "Law." Now, it strikes me as a very reasonable one, as most realist definitions of concepts do. But the move to say that this one conception of x is in fact the *only coherent* such conception so that it is the only conception which has the right to call itself by the concept x is one that many people make and always requires justification. Note, that you seem to not just be saying "my conception of x is the most consistent, reasonable, tangible such conception" but rather "my conception of x is the only honest, semantically correct such conception; all others are category mistakes. They say 'x' but they are clearly talking about some other 'y'." I have no dog in that fight (not being a lawyer) but I know how this debate has played out in terms of the concepts of "liberty," "equality," "justice" and many others. For the record, I *do believe* that some conceptions are better than others (negative over positive liberty, eg), but the mistake here is always in assuming that getting the language right solves the larger debate.
To wit: What if someone said to you "Fine I accept your definition of law. I will no longer call fiqh 'Islamic law.' I will henceforth call it merely 'fiqh' or perhaps 'Islamic doctrine' or 'Islamic ethics' and that is what interests me." Then the vast majority of your rhetorical argument is no longer accessible to you. They are no longer claiming to talk about a concept for about which you think they are making a category mistake.
2. Then, you can revert to your second point, which is "Ah, but there is really no such thing as 'Islamic doctrine/ethics/fiqh' either and even if it does it plays ZERO role in motivation."
I am simply not confident enough about my epistemic viewpoint to make this judgment about Qaradawi, Sistani, etc. This view also does not help me make sense of actual debates in Islamic circles about what is Islamically legitimate.
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Well let's see I deny the first and don't think I agree with the second so I'm not sure where that leaves me. Let me see if I can sort of lay it out.
First, the question is, is Legal Realism Absolute Truth and does Haider Ala Hamoudi have some sort of knowledge, akin to the Imam's Batin of the Qur'an, that enables him to know precisely the Way of Things, and what truly motivates all modern actors. The answer to this is, unsurprisingly, no. Of course there are other conceptions of Law, and no by no means are they conceptually incoherent or even normatively unappealing. Personally I find most of them descriptively preposterous, but I won't even pretend episemlogical certainty, or that my own contextual understandings, and my own education and upbringing, play no large role in that conclusion. In short, I am an American lawyer, it's what I know, it's what I know how to study, it's what I know how to do. I'm also an Arabic speaker, a Muslim, and someone who knows something about shari'a. I'm just applying one body of knowledge to the other, not claiming to reveal the Secrets of God's Universe.
So then the question is, what is wrong with taking techniques and understandings gleaned from the United States legal educational system and applying them to Islamic law? I do find it curious how often the first question seems to blend into the second, how at Harvard and elsewhere, "there are other perspectives" and "your methods are problematic" seem to become one, notwithstanding the obvious tension between them. To this I am not sure you did object, though I will say that to the extent you dont find this method enlightening as to what is happening in sharia cicles, this is not a perspective I share. I can read about all of the objections to insurance as gharar because you pay a premium and don't know if you ever get a return and am perplexed as to how anyone can consider a payout for a qualifying insurance event as profit, and I can hear doctrinally about Malik's exception to gharar for gratuities and then shake my head at how one can then recreate insurance as gratuity based and then call it "takaful" and make it okay when it's the same thing. But add in Muslim desires for alternatives to conventional finance based an brotherhood, and at least to me, it starts to make sense why all of this is happening, and why gratuitous insurance somehow sounds better.
And then the final question becomes if we posit that the Realism approach is fine, what's wrong with others? My answer is nothing, outside of US law schools. Meaning I don't criticize Najaf, I don't criticize the Azhar, I don't accuse them of being different from US judges, it's all good to me. I don't even think I should be criticizing Middle East law schools, I'm starting to rethink that (criticize on these grounds, anyway). But if you're going to have people who teach contracts, commercial law, constitutional law as American lawyers understand "law", and teach it to law students, if you're going to test those law students using fact patterns and other American techniques that the seminaries of students wouldn't recognize, if you're going to do all of this in a US law school, then I'm sorry but I do think you should be trying to use American law techniques to shed light on this other world. If not Realism, Dworkin. Or Hart. I don't care, but the idea that we're going to just dump what we mean by law and pick up what some other system means, that we can just switch worldviews for one seminar, well I question that, definitely. And if we do want to do that, which is fine, take it out of law school and do it intensively. or have everyone listen to Sayyid Hassan Qazwini for three hours on Najaf interpretation. Seriously, no problem. BUt then it's not law as we understand it, it's Islamic civics or call it what you like, and might well be enlightening and fascinatng, I will not disparage that, but it doesn't belong as a law school class. The value we add is taking our knowledge and our expertise to provide fresh insight on this world, not to try to replicate, badly, what they do.
HAH
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Yes, I agree with all this.
I have no experience in American law schools so I cannot speak to who is teaching "Islamic law," for what purposes and with what claims. (Although I myself will be teaching a class on "Islamic Law & Ethics" in the Fall which may get a Law school number. Of course I make it very clear that what I am teaching is not "law" in the sense of applied statutes. I am interested in Islamic law as formal ethical theorizing, not practical legal theorizing.)
But I am surprised that there are still people running around who teach the classical canon as a way of actually explaining what goes on in a contemporary Middle Eastern courtroom. From my superficial exposure, it strikes me that even when studying Saudi and Iran, the whole point of departure is how the claims to purity and traditionalism are manifestly undermined by reality.
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