How Decisions are made in (Islamic) law
Having returned from the various graduations of the past week, and from the festivities of Memorial Day, with a variety of different praises, criticisms, and questions concerning my work and my scholarly agenda, I thought I would mark my return by trying to provide a general overview of how I tend to approach law, in both the Islamic and American contexts, through reference to a specific, hypothetical example. I think from it many of my own ideas and concerns might be made more clear. And tomorrow we can return to issues of the day, namely terrorism and globalization.
Let us suppose, for a moment, that the Iraqi Shi'a Islamic parties are successful, as it seems at some point they will be, in repealing the Iraq Personal Status Code and replacing it with no more than "the shari'a, according to the school of thought of the relevant persons." Not a precise quote, but close enough. Now let us suppose that a Sunni wife, the third wife of a Sunni clan chief, wishes to oppose the marriage of her husband to a fourth, on the theory that this is a violation of the shari'a, which, she asserts, entitles the nobleman to three wives, not four. What result, should the case appear before an Iraqi judge?
I think anyone reasonably familiar with Islamic law might well be able to draft the opinion that will appear. It will almost surely begin with Sunnaic and Qur'anic references to a maximum of four wives, not three. This, the learned and careful judge will point out, is the basic source material of Sunni fiqh, and it is unambiguous. Assuming he does not feel constrained within the four Sunni schools of thought, he will then move forward, and show how the great classical jurists of their day, Sarakhsi and Kasani of the Hanafis, Ibn Qudama and Ibn Taymiyya of the Hanbalis, Juwayni and Mawardi of the Shafi'is, and Ibn Rushd and Qarafi of the Malikis, among many, many others, approached this question and thereby demonstrate the near unanimity of classical opinion that a man is entitled to marry four wives, not three.
Our learned judge may then move to the modern era, and quote contemporary Sunni scholars to the same effect. If he is careful and thoughtful and thorough, as we will assume our judge to be, he will also as an aside, perhaps in a footnote, point out that some modern scholars, from Fazlur Rahman to Mahmoud Taha to Fatima Mernissi, express a contrary opinion concerning any polygamy, based on what appears to be significant disapproval of and important limitations placed on the practice within the foundational texts. However, our clever judge might tell us, we need not reach this question, for it is not before the court. (He might not really say this depending on what you want to define as Islamic procedure, but let's leave that aside for now.) These modern men and women suggest that Islam bans all polygamy, and nobody is contesting his marriage to his current three wives, the issue is only the fourth. And so the case might end, were this truly the issue before the court.
Let me begin, then, with what I am NOT saying. I am NOT saying, to be clear, that one may safely toss out every single thing this judge just said, every single source he quoted, every conclusion he derived, as being nothing more than either disingenuous or deluded nonsense. Of course in this case the doctrine influenced the result. Not as much as one might think, in that the above case would never arise, no lawyer would make such a silly argument. The lawyer would instead turning to other, perhaps more powerful reasons the marriage might be denied (inability to treat all wives equally, or inability to provide for all of them, for example), and so the case, judged by its outcome rather than its form, is not, in fact, as impossible as the above discourse seems to suggest. However, clearly if the nobleman sought a fifth wife, his position would be considerably more precarious. And it is, I think, very difficult to maintain that the sources that the judge cited and the words he pronounced, carefully and thoughtfully, had absolutely nothing to do with the potential outcomes.
So clearly, the lawyer, if he is going even to reach a basic level of competence, needs to review carefully the classical sources, the foundational texts, the modern authorities, and understand what it is they say and how they might help him, because clearly, in some cases, they will.
Nevertheless, to say that doctrine can influence decisionmaking is not the same as suggesting that it compels it. The good lawyer, rather than the competent one, at least in my book, realizes that the latter statement is as obviously false as the former is true. That is to say, until he got to the modern era, our learned judge would find virtually the same unanimity concerning the permissibility of slavery. And yet our judge, it is safe to say, would never, under any circumstances imaginable, find such permissibility if the case appeared before him. In that case, doctrine was safely ignored, in favor of a different result. Other examples abound as well, drinking would be forbidden to our judge, because all schools of thought other than the Hanafis prohibit it, and yet if he knew anything of Islamic finance, manufacture for hire permitted only by the Hanafis is permitted, because they are respected classical authorities, so why shouldn't they count? Consistency, I think one will find, is hard to come by. Something else lurks.
That isn't to say the doctrine meant zero in decisionmaking, only that other things count too. When the question is can a man have three or four wives, there isn't much by way of social, political, economic, ethical, cultural, whatever circumstances that would compel a judge to do anything but follow what the books say. There might be circumstances, he might find the third wife compelling as a witness, he might be angry that his brother in law is marrying someone in addition to his sister, all of this might then affect the result (by causing him to find another basis, as noted, to deny the marriage), but it is safe to say that external factors are likely to mean less. If the issue is can a man marry more than ONE woman, well now there are external reasons, and now there are social forces, and a contrary view to the dominant classical one emerges. When it's slavery, the forces are so overwhelming that the classical theory disappears.
Now to me, this much is obvious, and I am amazed at the number of people who resist this conclusion. Judges, it seems, are supposed to occupy a hallowed place in our world, where they simply call balls and strikes neutrally, to use the parlance of our Chief Justice Roberts, and without regard to broader concerns. We must take what they say seriously, as opposed to, say, politicians, and if we don't just honor their words as hallowed wisdom, their reasoning as pristine, their motivations as unimpeccable, their doing as being nothing more than what they say they are doing, we are missing something central, I am told. Something about values, or consciousness, or worldview, depends on the person, but it's always something. Or I'm being arrogant by daring to suggest an alternative motive, who am I to do such a thing, do you know how long they studied, it is said to me.
Borrowing from something Roberto Unger said in his famous Critical Legal Theory piece, nobody would make that argument with a politician, however. If someone from Spain walked into my office and asked me what the Florida and Michigan counting votes issue was all about, I think I would be remiss if I said either (a) forget anything any of these guys say, throw it straight away, it's entirely about maximizing votes in favor of self interest or (b) it's a question of voting norms and rules and procedures and doctrines, and I don't even know who is on what side, it's purely about fairness to these people, they aren't thinking at all of their own interests. (b) is clearly wrong, all outside of the two campaigns themselves would laugh if they heard the suggestion that Obama doesn't want to count the votes, and Hillary does, irrespective of the fact that their position serves their interest. But (a), that it is pure self interest, seems to me equally purely wrong. If rules and procedures and fairness have nothing to do with it, why doesn't Obama seek to disqualify West Virginia for having a shocking number of unabashed racists, if the CNN reports are to be believed? You could say, well he couldn't get away with it, but why assume that he, or Hillary, don't themselves have innate senses of what is right and wrong and that they take those seriously? Why assume their arguments are totally disingenuous and purely designed to get themselves elected? Why, most importantly, assume pure self-interest for them, and then with judges, assume that their motivations (the (a) of the hypothetical above) are and can be no less and no more than what they say, or one isn't taking them seriously, or reflecting their consciousness, or describing their values, or honoring their ideas?
The dichotomy is difficult to support, legislators, executives and judges, are all human beings, usually similarly trained and educated, and with similar biases and understandings. It makes no sense to be so cynical with one, and so absolutely unquestioning of the other. If you want to understand the consciousness, and the values, and the norms and the traditions and the theories and the motivations, then account for both, the doctrine, and the external motivations, some of which are naked self-interest, some of which are ethical or cultural biases, some of which are personal.
Now once we know that, and once we admit that (and those who don't, well I don't really know what to say other than I can't begin to see the world of pristine judges faithfully applying doctrine as anything but descriptively preposterous), then we sort of have two paths. One path would be to say, that's all "practice." This does not have to be tinged with contempt, though often it is, but it is to say "this is more what happens to law, when it is brought down to application. This is adjudication, what I want to do is go back to those sources, those classical texts, and provide a rigorous, logical, working, sensible, theoretically coherent whole from them. I want to work out strands of thought, and trends, without necessarily paying attention to what happens on the ground. I might then pretend practice follows doctrine closely, which just isn't true for the modern world, as shown in the case of Islamic finance here. or if I'm more careful, then I might ignore practice, and say, it might be important, but it's not my thing. I do "doctrine." I think that's what Khaled Abou El Fadl says, stop talking to me about the Arab Israeli crisis, I'm talking to you about what the medieval scholars say that could lead to a working theory of constitutionalism or democracy.
However, under this approach, I might pay attention to the ground, I might say well in fact this theory I've developed bears no resemblance to "practice", a la Schacht, I might say instead in fact it is closer than Schacht thinks (Fadel, Johansen), but at the end of the day, I have developed a theory that is separable from practice,that can be compared to it but that might well depart in some instances (clearly it does, in jihad, for example).
If you taught American commercial law this way, what you'd do is look up the commentaries of Blackstone and Cook, you'd do a little bit of discursion into the moral ordering of society under the biases of capitalism, you'd talk a lot of how Mill and Keynes and Adam Smith of course would imagine commercial ordering, and how the law could achieve that. To the extent you bothered to cite a case, it would be selectively, to show how it can be applied, rather than as a demonstration of what is applied. Codes would mean less, theories of commercial order much more, though perhaps one can be compared against another to show either total divergence of theory from practice, or the substantial similarity. But what you are looking for are overarching rules, trends, theories, moral notions, that reach across the vast expanse and developing those, perhaps to compare to practice, perhaps not.
The other approach would be to say that this whole elaborate theory that has been built up isn't actually "law", that law is fundamentally practice. It need not discount this grand theory as irrelevant and silly, though it (I) often does (do). ("transcendental nonsense", "pie in the sky", etc.). But it doesn't depend on the theory being of no value in some grand philosophical sense. Instead, it emphasizes the function of choice in the adjudicatory process in particular. There are things that matter to judges, and they pick and choose among them to reach conclusions, rules and logically coherent theories aren't going to be found, though predictions might be made if one can properly isolate the bases of decisions and develop them. This approach would not ignore theory, as noted it can be quite important to look at it, fundamental even. Sometimes that is because it serves useful rhetoric, sometimes because it can help influence the outcome, sometimes supply the proper form of argument. It must be taken seriously as a result.
But under this approach, one would absolutely look beyond that, to understand exactly how and why judges come to the conclusions they do, beyond simply the reasons they provide in their opinions, which are, after all, institutionally constrained. That's what I've been doing in my blog, not to suggest that doctrine can't influence the outcome, but only to point to the other factors that nobody else seems to want to talk about, and to focus on all of that as also having a considerable and important effect on the outcome.
Under this approach, commercial law would be a study of the practice of commerce, and the rules under which it functions. A person who sought to draft the code would do so by paying particularly close attention to the manner in which merchants actually behaved, and codifying that. Economics, theories of individual autonomy, ideas of fairness, notions of historical progression, the commentaries of Blackstone, all of these might or might not be introduced, but only in the context of understanding the Code and its application in real world situations, understanding that such use is going to be selective, opportunistic and anything but logically rigorous. How do firms generate revenue? How do they borrow? What happens when they can't pay? Nobody is looking for consistency in theory, we are looking for predictability of result.
If I had to analogize to my previous life, I'd say a lawyer uses history, or these elaborately constructed legal theories, or normative theory, like a physicist uses mathematics. A physicist doesn't necessarily fully understand math, as any mathematician will attest, he doesn't really need to. That doesn't mean he can't add two numbers, it means he knows what he needs to know to succeed in his discipline, which is not mathematics, it's physics.
I know as much, or in many cases more, about Islamic history than most Iraqi judges. Now that doesn't mean I can't learn more to be a better lawyer, I might find something that will prove interesting, or compelling. But I'm not really trying to figure out the nuances of history, I'm trying to make an argument in a modern adjudication to a modern decisionmaker. And I look at everything through that lens. So the retort to me of well that might be what the judges say but it's not in the hearts of the people (literally heard that a week ago, won't say where) is I don't care. I don't care unless what's in the hearts of the people affects what the judges say. And since you're saying it doesn't, then I don't care, it's not law. It might be important, it might have consequences, the Pythagorean theorem is important too. Bridges fall down if you don't know about it. That doesn't make it law. And if the people's hears do affect decisionmaking in LAW, then by all means, show me how, there's nothing I want to know more than that.
So what's the rub? Well I've gone on far too long to point out everything wrong with the former approach, though this provides some, but let me make my one central observation. As a commercial law person, I can say with confidence that if you actually taught commercial law through looking primarily at academic constructions of texts, whether they be Blackstone or Adam Smith or the Law Merchant, then using the UCC, and commercial practice, and cases, as entirely secondary and as demonstrations of the conformity (or lack thereof) of practice to the real law, the higher theory, the overarching principles of American commerce that transcend the muddiness of practice, well I'll say in our academy, in the U.S., I really hope you've already got tenure before embarking on such an, ahem, unusual approach.
And so here we are, American lawyers, in a world in which the refrain "we are all Realists now" can be heard by just about everyone, in which our commercial code was developed by Realists who were seeking fundamentally not to replicate any sort of grand doctrinal theory, who disclaimed and ridiculed any notion of trying to do so, who really had their eye on the actual conduct of merchants, I think it is fair to say that perhaps our dominant approach, given our training, given our environment, given our students, perhaps we shouldn't be something that looks like it belongs in a theological seminary, or perhaps a religious studies or political philosophy department but bears almost no resemblance to any normal law school class. Does everyone have to do that. No, there's plenty of scholarship out there on all sorts of things, plenty of seminars on all sorts of things too, what's wrong with a little diversity. Should more of our focus be on this, so that future American lawyers might actually learn something about Islamic LAW, as they understand the term "law"? Seems so to me.
HAH
Let us suppose, for a moment, that the Iraqi Shi'a Islamic parties are successful, as it seems at some point they will be, in repealing the Iraq Personal Status Code and replacing it with no more than "the shari'a, according to the school of thought of the relevant persons." Not a precise quote, but close enough. Now let us suppose that a Sunni wife, the third wife of a Sunni clan chief, wishes to oppose the marriage of her husband to a fourth, on the theory that this is a violation of the shari'a, which, she asserts, entitles the nobleman to three wives, not four. What result, should the case appear before an Iraqi judge?
I think anyone reasonably familiar with Islamic law might well be able to draft the opinion that will appear. It will almost surely begin with Sunnaic and Qur'anic references to a maximum of four wives, not three. This, the learned and careful judge will point out, is the basic source material of Sunni fiqh, and it is unambiguous. Assuming he does not feel constrained within the four Sunni schools of thought, he will then move forward, and show how the great classical jurists of their day, Sarakhsi and Kasani of the Hanafis, Ibn Qudama and Ibn Taymiyya of the Hanbalis, Juwayni and Mawardi of the Shafi'is, and Ibn Rushd and Qarafi of the Malikis, among many, many others, approached this question and thereby demonstrate the near unanimity of classical opinion that a man is entitled to marry four wives, not three.
Our learned judge may then move to the modern era, and quote contemporary Sunni scholars to the same effect. If he is careful and thoughtful and thorough, as we will assume our judge to be, he will also as an aside, perhaps in a footnote, point out that some modern scholars, from Fazlur Rahman to Mahmoud Taha to Fatima Mernissi, express a contrary opinion concerning any polygamy, based on what appears to be significant disapproval of and important limitations placed on the practice within the foundational texts. However, our clever judge might tell us, we need not reach this question, for it is not before the court. (He might not really say this depending on what you want to define as Islamic procedure, but let's leave that aside for now.) These modern men and women suggest that Islam bans all polygamy, and nobody is contesting his marriage to his current three wives, the issue is only the fourth. And so the case might end, were this truly the issue before the court.
Let me begin, then, with what I am NOT saying. I am NOT saying, to be clear, that one may safely toss out every single thing this judge just said, every single source he quoted, every conclusion he derived, as being nothing more than either disingenuous or deluded nonsense. Of course in this case the doctrine influenced the result. Not as much as one might think, in that the above case would never arise, no lawyer would make such a silly argument. The lawyer would instead turning to other, perhaps more powerful reasons the marriage might be denied (inability to treat all wives equally, or inability to provide for all of them, for example), and so the case, judged by its outcome rather than its form, is not, in fact, as impossible as the above discourse seems to suggest. However, clearly if the nobleman sought a fifth wife, his position would be considerably more precarious. And it is, I think, very difficult to maintain that the sources that the judge cited and the words he pronounced, carefully and thoughtfully, had absolutely nothing to do with the potential outcomes.
So clearly, the lawyer, if he is going even to reach a basic level of competence, needs to review carefully the classical sources, the foundational texts, the modern authorities, and understand what it is they say and how they might help him, because clearly, in some cases, they will.
Nevertheless, to say that doctrine can influence decisionmaking is not the same as suggesting that it compels it. The good lawyer, rather than the competent one, at least in my book, realizes that the latter statement is as obviously false as the former is true. That is to say, until he got to the modern era, our learned judge would find virtually the same unanimity concerning the permissibility of slavery. And yet our judge, it is safe to say, would never, under any circumstances imaginable, find such permissibility if the case appeared before him. In that case, doctrine was safely ignored, in favor of a different result. Other examples abound as well, drinking would be forbidden to our judge, because all schools of thought other than the Hanafis prohibit it, and yet if he knew anything of Islamic finance, manufacture for hire permitted only by the Hanafis is permitted, because they are respected classical authorities, so why shouldn't they count? Consistency, I think one will find, is hard to come by. Something else lurks.
That isn't to say the doctrine meant zero in decisionmaking, only that other things count too. When the question is can a man have three or four wives, there isn't much by way of social, political, economic, ethical, cultural, whatever circumstances that would compel a judge to do anything but follow what the books say. There might be circumstances, he might find the third wife compelling as a witness, he might be angry that his brother in law is marrying someone in addition to his sister, all of this might then affect the result (by causing him to find another basis, as noted, to deny the marriage), but it is safe to say that external factors are likely to mean less. If the issue is can a man marry more than ONE woman, well now there are external reasons, and now there are social forces, and a contrary view to the dominant classical one emerges. When it's slavery, the forces are so overwhelming that the classical theory disappears.
Now to me, this much is obvious, and I am amazed at the number of people who resist this conclusion. Judges, it seems, are supposed to occupy a hallowed place in our world, where they simply call balls and strikes neutrally, to use the parlance of our Chief Justice Roberts, and without regard to broader concerns. We must take what they say seriously, as opposed to, say, politicians, and if we don't just honor their words as hallowed wisdom, their reasoning as pristine, their motivations as unimpeccable, their doing as being nothing more than what they say they are doing, we are missing something central, I am told. Something about values, or consciousness, or worldview, depends on the person, but it's always something. Or I'm being arrogant by daring to suggest an alternative motive, who am I to do such a thing, do you know how long they studied, it is said to me.
Borrowing from something Roberto Unger said in his famous Critical Legal Theory piece, nobody would make that argument with a politician, however. If someone from Spain walked into my office and asked me what the Florida and Michigan counting votes issue was all about, I think I would be remiss if I said either (a) forget anything any of these guys say, throw it straight away, it's entirely about maximizing votes in favor of self interest or (b) it's a question of voting norms and rules and procedures and doctrines, and I don't even know who is on what side, it's purely about fairness to these people, they aren't thinking at all of their own interests. (b) is clearly wrong, all outside of the two campaigns themselves would laugh if they heard the suggestion that Obama doesn't want to count the votes, and Hillary does, irrespective of the fact that their position serves their interest. But (a), that it is pure self interest, seems to me equally purely wrong. If rules and procedures and fairness have nothing to do with it, why doesn't Obama seek to disqualify West Virginia for having a shocking number of unabashed racists, if the CNN reports are to be believed? You could say, well he couldn't get away with it, but why assume that he, or Hillary, don't themselves have innate senses of what is right and wrong and that they take those seriously? Why assume their arguments are totally disingenuous and purely designed to get themselves elected? Why, most importantly, assume pure self-interest for them, and then with judges, assume that their motivations (the (a) of the hypothetical above) are and can be no less and no more than what they say, or one isn't taking them seriously, or reflecting their consciousness, or describing their values, or honoring their ideas?
The dichotomy is difficult to support, legislators, executives and judges, are all human beings, usually similarly trained and educated, and with similar biases and understandings. It makes no sense to be so cynical with one, and so absolutely unquestioning of the other. If you want to understand the consciousness, and the values, and the norms and the traditions and the theories and the motivations, then account for both, the doctrine, and the external motivations, some of which are naked self-interest, some of which are ethical or cultural biases, some of which are personal.
Now once we know that, and once we admit that (and those who don't, well I don't really know what to say other than I can't begin to see the world of pristine judges faithfully applying doctrine as anything but descriptively preposterous), then we sort of have two paths. One path would be to say, that's all "practice." This does not have to be tinged with contempt, though often it is, but it is to say "this is more what happens to law, when it is brought down to application. This is adjudication, what I want to do is go back to those sources, those classical texts, and provide a rigorous, logical, working, sensible, theoretically coherent whole from them. I want to work out strands of thought, and trends, without necessarily paying attention to what happens on the ground. I might then pretend practice follows doctrine closely, which just isn't true for the modern world, as shown in the case of Islamic finance here. or if I'm more careful, then I might ignore practice, and say, it might be important, but it's not my thing. I do "doctrine." I think that's what Khaled Abou El Fadl says, stop talking to me about the Arab Israeli crisis, I'm talking to you about what the medieval scholars say that could lead to a working theory of constitutionalism or democracy.
However, under this approach, I might pay attention to the ground, I might say well in fact this theory I've developed bears no resemblance to "practice", a la Schacht, I might say instead in fact it is closer than Schacht thinks (Fadel, Johansen), but at the end of the day, I have developed a theory that is separable from practice,that can be compared to it but that might well depart in some instances (clearly it does, in jihad, for example).
If you taught American commercial law this way, what you'd do is look up the commentaries of Blackstone and Cook, you'd do a little bit of discursion into the moral ordering of society under the biases of capitalism, you'd talk a lot of how Mill and Keynes and Adam Smith of course would imagine commercial ordering, and how the law could achieve that. To the extent you bothered to cite a case, it would be selectively, to show how it can be applied, rather than as a demonstration of what is applied. Codes would mean less, theories of commercial order much more, though perhaps one can be compared against another to show either total divergence of theory from practice, or the substantial similarity. But what you are looking for are overarching rules, trends, theories, moral notions, that reach across the vast expanse and developing those, perhaps to compare to practice, perhaps not.
The other approach would be to say that this whole elaborate theory that has been built up isn't actually "law", that law is fundamentally practice. It need not discount this grand theory as irrelevant and silly, though it (I) often does (do). ("transcendental nonsense", "pie in the sky", etc.). But it doesn't depend on the theory being of no value in some grand philosophical sense. Instead, it emphasizes the function of choice in the adjudicatory process in particular. There are things that matter to judges, and they pick and choose among them to reach conclusions, rules and logically coherent theories aren't going to be found, though predictions might be made if one can properly isolate the bases of decisions and develop them. This approach would not ignore theory, as noted it can be quite important to look at it, fundamental even. Sometimes that is because it serves useful rhetoric, sometimes because it can help influence the outcome, sometimes supply the proper form of argument. It must be taken seriously as a result.
But under this approach, one would absolutely look beyond that, to understand exactly how and why judges come to the conclusions they do, beyond simply the reasons they provide in their opinions, which are, after all, institutionally constrained. That's what I've been doing in my blog, not to suggest that doctrine can't influence the outcome, but only to point to the other factors that nobody else seems to want to talk about, and to focus on all of that as also having a considerable and important effect on the outcome.
Under this approach, commercial law would be a study of the practice of commerce, and the rules under which it functions. A person who sought to draft the code would do so by paying particularly close attention to the manner in which merchants actually behaved, and codifying that. Economics, theories of individual autonomy, ideas of fairness, notions of historical progression, the commentaries of Blackstone, all of these might or might not be introduced, but only in the context of understanding the Code and its application in real world situations, understanding that such use is going to be selective, opportunistic and anything but logically rigorous. How do firms generate revenue? How do they borrow? What happens when they can't pay? Nobody is looking for consistency in theory, we are looking for predictability of result.
If I had to analogize to my previous life, I'd say a lawyer uses history, or these elaborately constructed legal theories, or normative theory, like a physicist uses mathematics. A physicist doesn't necessarily fully understand math, as any mathematician will attest, he doesn't really need to. That doesn't mean he can't add two numbers, it means he knows what he needs to know to succeed in his discipline, which is not mathematics, it's physics.
I know as much, or in many cases more, about Islamic history than most Iraqi judges. Now that doesn't mean I can't learn more to be a better lawyer, I might find something that will prove interesting, or compelling. But I'm not really trying to figure out the nuances of history, I'm trying to make an argument in a modern adjudication to a modern decisionmaker. And I look at everything through that lens. So the retort to me of well that might be what the judges say but it's not in the hearts of the people (literally heard that a week ago, won't say where) is I don't care. I don't care unless what's in the hearts of the people affects what the judges say. And since you're saying it doesn't, then I don't care, it's not law. It might be important, it might have consequences, the Pythagorean theorem is important too. Bridges fall down if you don't know about it. That doesn't make it law. And if the people's hears do affect decisionmaking in LAW, then by all means, show me how, there's nothing I want to know more than that.
So what's the rub? Well I've gone on far too long to point out everything wrong with the former approach, though this provides some, but let me make my one central observation. As a commercial law person, I can say with confidence that if you actually taught commercial law through looking primarily at academic constructions of texts, whether they be Blackstone or Adam Smith or the Law Merchant, then using the UCC, and commercial practice, and cases, as entirely secondary and as demonstrations of the conformity (or lack thereof) of practice to the real law, the higher theory, the overarching principles of American commerce that transcend the muddiness of practice, well I'll say in our academy, in the U.S., I really hope you've already got tenure before embarking on such an, ahem, unusual approach.
And so here we are, American lawyers, in a world in which the refrain "we are all Realists now" can be heard by just about everyone, in which our commercial code was developed by Realists who were seeking fundamentally not to replicate any sort of grand doctrinal theory, who disclaimed and ridiculed any notion of trying to do so, who really had their eye on the actual conduct of merchants, I think it is fair to say that perhaps our dominant approach, given our training, given our environment, given our students, perhaps we shouldn't be something that looks like it belongs in a theological seminary, or perhaps a religious studies or political philosophy department but bears almost no resemblance to any normal law school class. Does everyone have to do that. No, there's plenty of scholarship out there on all sorts of things, plenty of seminars on all sorts of things too, what's wrong with a little diversity. Should more of our focus be on this, so that future American lawyers might actually learn something about Islamic LAW, as they understand the term "law"? Seems so to me.
HAH
This is my favorite post yet. I would only add: What's so special about the modern period? I would always assume that many of the external factors you mention were present in pre-modern adjudication. Although not all of course: today there are extra-Islamic moral standards and legal systems which compete for normativity, but I would never assume for a moment about what was going through the mind of a 13th or 18th century qadi in Bukhara even if I knew what his madrasa curriculum was.
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Thanks. I don't dispute your contention respecting the medieval period. It's not my focus, but that's like saying my focus in law is commercial, not constitutional (we all do something). In fact, in some respects, I wish there was more work on actual practices in the medieval period. I still don't understand medieval commerce. I know the juristic rules, I know some of them seem so patently unworkable it's hard to believe they were ever applied, I know some have pointed this out, but I haven't really gotten any sense of what medieval Muslims did, where doctrine mattered, where it didn't, when it didn't why not and what was done instead. I have some very helpful fatawa and rulings that Mohammad Fadel sends me every now and then which are fascinating, but not much of a complete picture by and large in any period or place. But since it's not my area, perhaps I'm not reading enough about it, and that's the problem.
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