Four Critiques on Islamic law scholarship in law schools
Well I am fresh from my Islamic law doctoral defense, which I passed, though I still have to fill out some papers before you may call me "Dr." But one thing that was sort of addressed there, by the committee, was very similar to what I think Professor March and I were discussing over the comments to the last post, and it is starting to make me think that I am coming off more stridently on one issue than I need to be.
Specifically, clearly I am not Grand Poobah of the law world with some sort of power to decide what should and shouldn't be taught in law school. Obviously some weird stuff is often taught in law schools, the point isn't that I've decided to impose a form of imperial censorship rule (as if anybody would listen even if I did).
So let's go to these, my four central critiques on the current focus in Islamic law, both in terms of scholarship and teaching, at a law school, to refine my ideas based on these extensive conversations and blog comment exchanges that have been truly excellent and enlightening.
1. There is a decided focus on doctrine at the expense of other factors in the evolution of the law. By far the oddest objection I get to my work is "but you aren't really focussed on what the community is saying, their debates, you're not talking their language when you start to talk of external reasons that drive their decisionmaking." Well, even if I were guilty of such an entire omission, which I'm not (you can't explain why the community got to decision X without some explanation of what X is, what the doctrinal question was that framed it, where the debates where, etc.), so what? Do you want to hear what the Muslim scholars are saying about Islamic finance? Read Frank Vogel's book. Read Nicholas Ray's book. Read Nabil Saleh. If you can do Arabic, read Sanhuri. Or read the scholars themselves, Usmani, Siddiqui, Chapra, whoever. That's all about what the scholars say. You can see it again and again. And again and again. Generation by generation, country by country. And this is what I'm supposed to be including? Why, did everyone miss it the first fifty times?
But I think when you're done, you might be, as I was, left with a profound dissatisfaction. How can you leave contract stipulations behind based on the tendentious reading of one scholar, and stick so resolutely to the interest prohibition? Of course they recognize doctrine evolved, but there's really not much explanation as to why this way and not that. And that's where the factors I'm discussing come in, and are relevant. If I'm wrong, then someone explain it better, but they don't usually. It's just--these are the changes, this is the logic behind them, without the slightest explanation as to whether or not another approach was equally plausible and if so, when it lies untraveled.
So to the extent doctrine is relevant, it's dramatically overstudied, and politics, economics, social and cultural influences, and their impact on the doctrine, is left behind.
2. A decided favoring of theory over practice.
The other side of realism, not just the rule skepticism of (1), but the sociological aspects here. (I cribbed that two aspects thing from my committee). My favorite example here is the murabaha, Islamic finance's first artifice to take interest in all but form. The financiers declare it okay to sell buy object X from a third party and sell it to the borrower for X plus interest paid later. But they call it borderline (Usmani's term). Borrower has to use the product. It can't be synthetic. Bank has to own it for some period of time. And in so many, all too many finance books, this is repeated like a mantra. Borderline. Use the product. Owned temporarily by bank.
Now when we turn to practice, ask any dude in the practice about this. It's totally different Bank doesn't own, except for a fraction of a second, or less. This some books note. But what they ever note is that so so often the borrower never uses, if the board says he has to, then the bank can just hide that piece from the sharia review board (on the theory that they can't be responsible for what the borrower does after their part is done) and it's all good. So bank buys copper from $100 from STRAWman, sells it, for a price to be paid later, to borrower in a month's time for $105, and the guy then sells it back to strawman for $100 immediate cash. Done all the time. But we prefer not to discuss this. Because the theory says, borderline. Borrower must use. Whatever.
3. Elitism
It's like the rule of perpetuities, once you get the classical jurists, you sort of want to insist everyone else does too and no longer ask the point. And when they don't, you sort of dismiss them. Idiots. Simpletons. People who think they know shari'a but don't. Absurd.
All well and good, if you weren't talking about judges. And fatwa issuing clerics. And people who make decisions. Do they really matter less than 14th century clerics? Again, we don't even have to conclude that 14th century clerics are irrelevant. We do have to ask why they so relevant to merit all of this near exclusive attention.
4. A coherent theory of law
We've been building to this. Everyone asks "what is Islamic law" with an emphasis on the word "Islamic". How about emphasizing the second word. That is, what is Islamic LAW, as contradistinct from ethics, religion, philosophy, whatever.
Here I really do think there is not a lot of rigor addressed to the subject. They never really adopt a full paradigm.
Nobody adopts a realist theory of law, except me, and I'm roundly criticized for it.
It's not Hart. If we want to use Hart's theory, Lama Abu Odeh, bete noire of the field, is, while overstating the marginalization of shari'a, clearly right. Clearly the legal order Hart envisions, with its first order and second order rules administered by officials, if that's law, then she has it. That's not shari'a, or how it operates. I take a broader view of law, and include within it binding decisions of the social order, state administered or not. But nobody I think can accept Hart's version of jurisprudence and really focus all too much on a generalized shari'a.
Dworkin is more likely as a promising approach with its drawing on moral intuition to create law. But then that presupposes there is a particular moral intuition to the classical texts,a logic tothem that sort of drives what is supposed to be decided in the system. I don't know if anyone actually believes that.
So what the hell is it then? What conception of "law" is this? Is this "law"? Is any juristic exposition "law", and if so, how and why? Look, I'm not saying we can't all write about how Islamic law is or is not compatible with constitutionalism or democracy, but if it's all juristic texts, can't someone ask if the question is perhaps more ethical or philosophical than legal? That what you are calling "Islamic law" isn't actually law at all, it's moral philosophy.
And no that doesn't make philosophy or ethics stupid or useless, what it does is beg the question--if Islamic law is basically religious studies, what qualifies American lawyers to teach it? Even if the guy has a PhD in religious studies, maybe he's teaching at the wrong place. What's the JD get you in this world? What value do we add in a law school curriculum? What can we say that some dude with an Islamic studies PhD cannot? And to the comparitists, what exactly are you comparing if "law" in the Muslim context bears no resemblance to law in the American?
These are the questions I thnk we have to answer, if we're going to come up with a coherent reason that law schools should teach something called "Islamic law", as an answer to what I would anticipate Lama would say--law is done by states, and this stuff isn't law. In the absence of a conception of what about law makes shari'a into Islamic "law", nobody's going to get the point, I don't think.
HAH
Specifically, clearly I am not Grand Poobah of the law world with some sort of power to decide what should and shouldn't be taught in law school. Obviously some weird stuff is often taught in law schools, the point isn't that I've decided to impose a form of imperial censorship rule (as if anybody would listen even if I did).
So let's go to these, my four central critiques on the current focus in Islamic law, both in terms of scholarship and teaching, at a law school, to refine my ideas based on these extensive conversations and blog comment exchanges that have been truly excellent and enlightening.
1. There is a decided focus on doctrine at the expense of other factors in the evolution of the law. By far the oddest objection I get to my work is "but you aren't really focussed on what the community is saying, their debates, you're not talking their language when you start to talk of external reasons that drive their decisionmaking." Well, even if I were guilty of such an entire omission, which I'm not (you can't explain why the community got to decision X without some explanation of what X is, what the doctrinal question was that framed it, where the debates where, etc.), so what? Do you want to hear what the Muslim scholars are saying about Islamic finance? Read Frank Vogel's book. Read Nicholas Ray's book. Read Nabil Saleh. If you can do Arabic, read Sanhuri. Or read the scholars themselves, Usmani, Siddiqui, Chapra, whoever. That's all about what the scholars say. You can see it again and again. And again and again. Generation by generation, country by country. And this is what I'm supposed to be including? Why, did everyone miss it the first fifty times?
But I think when you're done, you might be, as I was, left with a profound dissatisfaction. How can you leave contract stipulations behind based on the tendentious reading of one scholar, and stick so resolutely to the interest prohibition? Of course they recognize doctrine evolved, but there's really not much explanation as to why this way and not that. And that's where the factors I'm discussing come in, and are relevant. If I'm wrong, then someone explain it better, but they don't usually. It's just--these are the changes, this is the logic behind them, without the slightest explanation as to whether or not another approach was equally plausible and if so, when it lies untraveled.
So to the extent doctrine is relevant, it's dramatically overstudied, and politics, economics, social and cultural influences, and their impact on the doctrine, is left behind.
2. A decided favoring of theory over practice.
The other side of realism, not just the rule skepticism of (1), but the sociological aspects here. (I cribbed that two aspects thing from my committee). My favorite example here is the murabaha, Islamic finance's first artifice to take interest in all but form. The financiers declare it okay to sell buy object X from a third party and sell it to the borrower for X plus interest paid later. But they call it borderline (Usmani's term). Borrower has to use the product. It can't be synthetic. Bank has to own it for some period of time. And in so many, all too many finance books, this is repeated like a mantra. Borderline. Use the product. Owned temporarily by bank.
Now when we turn to practice, ask any dude in the practice about this. It's totally different Bank doesn't own, except for a fraction of a second, or less. This some books note. But what they ever note is that so so often the borrower never uses, if the board says he has to, then the bank can just hide that piece from the sharia review board (on the theory that they can't be responsible for what the borrower does after their part is done) and it's all good. So bank buys copper from $100 from STRAWman, sells it, for a price to be paid later, to borrower in a month's time for $105, and the guy then sells it back to strawman for $100 immediate cash. Done all the time. But we prefer not to discuss this. Because the theory says, borderline. Borrower must use. Whatever.
3. Elitism
It's like the rule of perpetuities, once you get the classical jurists, you sort of want to insist everyone else does too and no longer ask the point. And when they don't, you sort of dismiss them. Idiots. Simpletons. People who think they know shari'a but don't. Absurd.
All well and good, if you weren't talking about judges. And fatwa issuing clerics. And people who make decisions. Do they really matter less than 14th century clerics? Again, we don't even have to conclude that 14th century clerics are irrelevant. We do have to ask why they so relevant to merit all of this near exclusive attention.
4. A coherent theory of law
We've been building to this. Everyone asks "what is Islamic law" with an emphasis on the word "Islamic". How about emphasizing the second word. That is, what is Islamic LAW, as contradistinct from ethics, religion, philosophy, whatever.
Here I really do think there is not a lot of rigor addressed to the subject. They never really adopt a full paradigm.
Nobody adopts a realist theory of law, except me, and I'm roundly criticized for it.
It's not Hart. If we want to use Hart's theory, Lama Abu Odeh, bete noire of the field, is, while overstating the marginalization of shari'a, clearly right. Clearly the legal order Hart envisions, with its first order and second order rules administered by officials, if that's law, then she has it. That's not shari'a, or how it operates. I take a broader view of law, and include within it binding decisions of the social order, state administered or not. But nobody I think can accept Hart's version of jurisprudence and really focus all too much on a generalized shari'a.
Dworkin is more likely as a promising approach with its drawing on moral intuition to create law. But then that presupposes there is a particular moral intuition to the classical texts,a logic tothem that sort of drives what is supposed to be decided in the system. I don't know if anyone actually believes that.
So what the hell is it then? What conception of "law" is this? Is this "law"? Is any juristic exposition "law", and if so, how and why? Look, I'm not saying we can't all write about how Islamic law is or is not compatible with constitutionalism or democracy, but if it's all juristic texts, can't someone ask if the question is perhaps more ethical or philosophical than legal? That what you are calling "Islamic law" isn't actually law at all, it's moral philosophy.
And no that doesn't make philosophy or ethics stupid or useless, what it does is beg the question--if Islamic law is basically religious studies, what qualifies American lawyers to teach it? Even if the guy has a PhD in religious studies, maybe he's teaching at the wrong place. What's the JD get you in this world? What value do we add in a law school curriculum? What can we say that some dude with an Islamic studies PhD cannot? And to the comparitists, what exactly are you comparing if "law" in the Muslim context bears no resemblance to law in the American?
These are the questions I thnk we have to answer, if we're going to come up with a coherent reason that law schools should teach something called "Islamic law", as an answer to what I would anticipate Lama would say--law is done by states, and this stuff isn't law. In the absence of a conception of what about law makes shari'a into Islamic "law", nobody's going to get the point, I don't think.
HAH
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