Does anyone appreciate the existence of non shari'a state law in Muslim countries?: A Cry of Exasperation
We are going to interrupt our regularly scheduled programming concerning Abu Hurayra and the like for this breaking news, which really deserves a spot on the SNL's weekend update segment "Really, with Seth and Amy." As in:
Really, Prince Alwaleed Bin-Talal Center for Muslim Christian Understanding at Georgetown University? You are holding an event called "Is There a Role for Shari'ah in Modern States", and you didn't think about inviting a lawyer from a modern Muslim state, or at least an expert in law in a modern Muslim state? What, were all hundred million of them too busy?
Really? You didn't know that Muslim states had laws? That maybe those laws had something to say about "The Role of Shari'ah" in them? It's like spending a fortune preparing a wedding for your daughter, making the arrangments, handling the reservations, and then forgetting you need a groom.
Really, you didn't think law was important? Do you ever order peanut butter and jelly sandwiches, Prince Alwaleed Center, and ask them to hold the jelly? Isn't that just a peanut butter sandwich? Since you didn't include the law in the Muslim state part, can't we just call this "Is There a Role for Shari'ah in Islam"? News flash for you, Prince Alwaleed Center--the answer to that question is yes.
Really? Huh. Wow.
Okay, it's not making SNL, but strictly among us nerds, it would be funny if it weren't so sad. There's some great people on these panels. Nathan Brown, Sherman Jackson, Asifa Quraishi, Andrew March, Clark Lombardi, Mohammad Fadel, Intisar Rabb, but you would think that someone would have thought that oh, I don't know, that messy little thing called LAW might be relevant, and that maybe somebody who studied that in a Muslim state could be of use not as a REPLACEMENT but as a vitally important ADDITION to prevent this from looking really awfully silly. Not someone with a PhD, or a PhD candidate, in Islamic studies who has looked extensively at one clause of an Arab constitution related to Islam and jurisprudence under it--NOTHING wrong with this, VERY welcome addition, but you need more than just speakers on this. You need someone with a broader interest and depth in the field of law, and with extensive knowledge of how it works in some part of the Muslim world beyond the question of shari'a and a constitution.
We're seriously going to examine the question of what it means for law to conform to shari'a, and our experts are going to be experts in shari'a, and nobody is the expert in law in the states in question? How can that not be relevant, indeed fundamental, to the question posed? Don't we have to know how the law works, what it says, what the judicial culture is, what the legal culture is, how the legal community views Islam in law (suspiciously, reluctantly, curiously, enthusiastically?) to come up with an educated and comprehensive answer?
When I was finishing up my own doctorate (in LAW, I am proud to say), one of the criticisms I received, at my defense and on the blog, was that I was insufficiently respectful of other traditions and understandings of law, of Islam, of the state, and that more than one agenda could be accommodated in the academy. As I've thought about it, I've grown to accept that as true and backed off from more provocative claims that would suggest otherwise. But geesh, talk about the reverse problem, look at this. "Shari'ah in modern states", a whole panel on "Shari'ah and the constitution", and nobody thinks that a LEGAL expert in a Muslim state is necessary. I don't know whether to laugh or cry.
But in order to aid those good people at the Prince Alwaleed Bin-Talal Center, I'm going to provide some names (not being so presumptuous as to add my own, lest I be accused of sour grapes) of people who study and know the law in various Muslim states well who might well be called. I limit myself to a few academics in US law schools in no particular order, though if you want to look beyond that, as noted above, there's probably a hundred million of us out there who have lived and worked in Muslim law jurisdictions in the area of LAW, not religious studies, who could say a thing or two you might find useful. I don't share all of their agendas, some disagree with me on any number of points, but they all know law, in Muslim countries, pretty well and would be worthy additions.
Here we go. Chibli Mallat (Middle Eastern law, Utah), Lama Abu Odeh (Middle Eastern Law, Georgetown/AUC), Anil Kalhan (Pakistani law, Drexel), Karima Bennoune (North African law, Rutgers/Michigan), Mark Cammack (Indonesian law, Southwestern), Feisal Istrabadi (Iraq law, Indiana (Bloomington)), Dan Stigall (Iraq law, JAG Corps (not an academic though we're working on him), Ra'ad Juhi (Iraq law, Cornell).
But if not, it's okay, it's all good. It even inspired me to organize my own event called "Portia and the Judge: The Use of Law in the Merchant of Venice." The only rule is you aren't allowed to know anything about Shakespeare to participate. Should be fun.
Really? Huh. Wow.
HAH
Really, Prince Alwaleed Bin-Talal Center for Muslim Christian Understanding at Georgetown University? You are holding an event called "Is There a Role for Shari'ah in Modern States", and you didn't think about inviting a lawyer from a modern Muslim state, or at least an expert in law in a modern Muslim state? What, were all hundred million of them too busy?
Really? You didn't know that Muslim states had laws? That maybe those laws had something to say about "The Role of Shari'ah" in them? It's like spending a fortune preparing a wedding for your daughter, making the arrangments, handling the reservations, and then forgetting you need a groom.
Really, you didn't think law was important? Do you ever order peanut butter and jelly sandwiches, Prince Alwaleed Center, and ask them to hold the jelly? Isn't that just a peanut butter sandwich? Since you didn't include the law in the Muslim state part, can't we just call this "Is There a Role for Shari'ah in Islam"? News flash for you, Prince Alwaleed Center--the answer to that question is yes.
Really? Huh. Wow.
Okay, it's not making SNL, but strictly among us nerds, it would be funny if it weren't so sad. There's some great people on these panels. Nathan Brown, Sherman Jackson, Asifa Quraishi, Andrew March, Clark Lombardi, Mohammad Fadel, Intisar Rabb, but you would think that someone would have thought that oh, I don't know, that messy little thing called LAW might be relevant, and that maybe somebody who studied that in a Muslim state could be of use not as a REPLACEMENT but as a vitally important ADDITION to prevent this from looking really awfully silly. Not someone with a PhD, or a PhD candidate, in Islamic studies who has looked extensively at one clause of an Arab constitution related to Islam and jurisprudence under it--NOTHING wrong with this, VERY welcome addition, but you need more than just speakers on this. You need someone with a broader interest and depth in the field of law, and with extensive knowledge of how it works in some part of the Muslim world beyond the question of shari'a and a constitution.
We're seriously going to examine the question of what it means for law to conform to shari'a, and our experts are going to be experts in shari'a, and nobody is the expert in law in the states in question? How can that not be relevant, indeed fundamental, to the question posed? Don't we have to know how the law works, what it says, what the judicial culture is, what the legal culture is, how the legal community views Islam in law (suspiciously, reluctantly, curiously, enthusiastically?) to come up with an educated and comprehensive answer?
When I was finishing up my own doctorate (in LAW, I am proud to say), one of the criticisms I received, at my defense and on the blog, was that I was insufficiently respectful of other traditions and understandings of law, of Islam, of the state, and that more than one agenda could be accommodated in the academy. As I've thought about it, I've grown to accept that as true and backed off from more provocative claims that would suggest otherwise. But geesh, talk about the reverse problem, look at this. "Shari'ah in modern states", a whole panel on "Shari'ah and the constitution", and nobody thinks that a LEGAL expert in a Muslim state is necessary. I don't know whether to laugh or cry.
But in order to aid those good people at the Prince Alwaleed Bin-Talal Center, I'm going to provide some names (not being so presumptuous as to add my own, lest I be accused of sour grapes) of people who study and know the law in various Muslim states well who might well be called. I limit myself to a few academics in US law schools in no particular order, though if you want to look beyond that, as noted above, there's probably a hundred million of us out there who have lived and worked in Muslim law jurisdictions in the area of LAW, not religious studies, who could say a thing or two you might find useful. I don't share all of their agendas, some disagree with me on any number of points, but they all know law, in Muslim countries, pretty well and would be worthy additions.
Here we go. Chibli Mallat (Middle Eastern law, Utah), Lama Abu Odeh (Middle Eastern Law, Georgetown/AUC), Anil Kalhan (Pakistani law, Drexel), Karima Bennoune (North African law, Rutgers/Michigan), Mark Cammack (Indonesian law, Southwestern), Feisal Istrabadi (Iraq law, Indiana (Bloomington)), Dan Stigall (Iraq law, JAG Corps (not an academic though we're working on him), Ra'ad Juhi (Iraq law, Cornell).
But if not, it's okay, it's all good. It even inspired me to organize my own event called "Portia and the Judge: The Use of Law in the Merchant of Venice." The only rule is you aren't allowed to know anything about Shakespeare to participate. Should be fun.
Really? Huh. Wow.
HAH
The guy who owns the center (Alwaleed bin Talal); is the same guy who has this huge music company, Rotana, and has 5 music channels that are full of bellydancing and all the things that would make the smallest or biggest sheikh in Saudi Arabia pull his hair and beard with anger; however, no one dares to speak one word against him, furthermore, he opens a multi-billion US$ project in Jeddah hand in hand with the King! And now he comes and speaks Sharia to us?!?!
I hope there won't be trend in future which gives every Saudi the right to issue fatwas even if they ran the Arabic version of MTV! It's just as silly as saying that every Iranian is an Ayatollah even if they sang Persian Rap on the Dubai-based Persian Music Channel (PMC) !!!
Good Grief! What are they doing to the Muslim World?!
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Actually, Z, I don't thnk he gets to control it, just gave money for it to be created with no strings attached so far as I understand. But what do I know.
Anyway, it is always good that Muslims actually in the Middle East with extensive knowledge of law read the blog, as you do, and agree with the conclusions. Thanks very much for the comment,
HAH
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Doesn't Clark Lombardi count? He's studied Egyptian constitutional law extensively. Also, is it because all these people have Islamic Studies PhDs? I agree that the people you suggested would have been more than appropriate, but is it a wrong assumption to say that these people who are experts in the Sharia can't possibly be experts in the law of the respective Muslim state they have studied?
This is a purely curious inquiry. I am ambivalent as to the composition of the speaker panel.
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Anil Kalhan asked the same thing, about both Clark and Asifa Quraishi. I want to answer, but to tread carefully.
Let me say this. They are both friends of mine, and as I told Asifa in San Francisco, for someone who is wrong most of the time, she's pretty articulate. (She returned the compliment with a "ditto.") That's all in fun, in seriousness, I don't agree with some of what they say, in some cases strongly, but I think both have done serious work that I admire. What I like most is their efforts not to treat Islamic law as some sort of abstract theoretical construct, but as a set of normative principles with effect in actual state law, and the manner in which that might play a role in the state.
But there are two ways to go about this. One is what I would describe them as doing. That is, to look at shari'a, how it has worked historically, how it has worked traditionally, how those ideas might work today, and then use all of that to sort of develop a theory of shari'a in the modern state. Yes you have to have some knowledge of the modern state to do that, and its law, and they do look at the law, in that context. Asifa looks at the adultery laws in Pakistan, and how a different reading can be given to them. Clark focusses on Article 2 of the Egyptian Constitution. Their American legal training no doubt is indispensable to that. But in both cases, it's the shari'a that sort of comes first, the shari'a that is the basis of the analysis, the state law playing a role inasmuch as it is argued to conflict with shari'a. I don't think Clark has written extensively, for example, on other provisions of the Egyptian Constitution, or that Asifa concerns herself with the Pakistani rules of commerce for cashing a bad check. I don't think they claim to do that. In both cases, the entire state legitimacy is justified by the reference to the shari'a. it is equivalent to the caliph's siyasa, the state's policy working within strictures to achieve God's Will. I'm not suggesting they think it's a precise replica of classical Islam, but this theory in some way is at work. There is nothing wrong with this approach, I am glad it is out there.
I will say, though, that it is not the way I see the world, and I don't think it is the way that a lawyer operating in a Muslim state sees it, or (let me pull back a bit) is likely to see it in many cases . Another approach, no less valid and no less important, is to look at the state, not the shari'a as the functioning source of the social order. That to me, in my approach, is a better description of the world, in the manner i see it (doesn't make it objectively right). The state exists as a post colonial construct, NOT because it is God's representative on earth, it doesn't derive its authority from this, and it doesn't derive its legitimacy on the basis of this. And so yeah it can add a clause concerning shari'a, or it can leave it out, it's still the state, and it's still the state's law, and there is something normatively appealing to Muslims about that. They practice law both ways, argue in courts both ways, they might like one more than the other, but both have some legitimacy, because they are the law of the state. So they don't just follow the law because it fulfills God's Will, they do it because it is the law. And when the Islamist seeks to make God's Will paramount, what does he do? Withdraw into some sort of semiautomous enclave where he can live his life that way like those polygamists out in Texas or wherever they are and ignore the state's impact? No, he CHANGES the LAW. Law is first, the touchstone of legitimacy in the social order in any post colonial state. Or so I believe, and so I think nearly any lawyer, Islamist or no, implicitly accepts this when working in that order through law. When he wants Islam, he needs the law to recognize Islam. When the judge claims to use Islam, it's because the law lets him do it, the state said he could, not because it's God's Will. The court says provision X of the constitution allows shari'a, and here I go. He doesn't say "who gives a damn about this damn parliamentary nonsense and what they say, it's God's Will we are talking about, I'm going to apply that." No lawyer in that system would tolerate that. Shari'a does not justfy law in this approach, law justifies shari'a.
So under this legal perspective, if we are going to talk about how shari'a fits into the state, then we need someone who doesn't just know Muslim state law inasmuch as it impacts shari'a, but knows shari'a inasmuch as it impacts state law. that is, someone who could tell you how to recover on a bad check, or what the term "witness" means in the Iraq laws of personal status. Someone who knows how criminal investigations work, who has been trained to prosecute them, and then take THAT person, inculcated and practiced in THAT culture, and ask her "what role should shari'a have in your law." Not necessarily the world's expert on shari'a, but someone who knows state law very well. She is very likely to take a very different approach to the question. Nonsense, she might say, to suggest shari'a has role A in criminal law. Do you even understand how our criminal law operates? How in the world could we do A, it can't work, we'd have to change everything, nobody wants to do that. The only thing we could do that would work is B. We can incorporate that, we have to find a way to legitimize shari'a in a manner that demands of us B, but not A. So Islamic crimes can find their way in to Muslim states, but Islamic criminal procedure never does. The guy who can explain that is the one who has tried or sat in on or studied these cases, and not with reference to shari'a value but just because they are the state systems at work here. He knows them, he knows how to work them, he knows what from shari'a as a result will work and how in them. And he will interpret shari'a in a manner that complies with his training and understnding. If in Malaysia, he will argue shari'a though analogy because it is common law to do that. If in Egypt, deductively because that's civil law. Shari'a is then molded to fit the state, and its legal needs.
Why is the missing one important? Well who are these Egyptian judges reading these statutes and determining their constitutionality, listening to these arguments? It is precisely people trained and practiced in Egyptian law, who could run us through an Egyptian case with their eyes closed, no need for shari'a thank you very much. It is not jurists who know about Egyptian law only what they need to know to make their shari'a knowledge workable in the law. In Iraq, the attempt by jurists to so interfere has led to strong judicial resistance to involving shari'a at all. But you have to talk to the judge to understand that. You can't just talk to people who know law through shari'a, rather people who know sharia through law.
And so I understand when Sherman Jackson dismisses us as excessively legal centralists who can't understand a pluralist structure to the state that Islam suggests. He likes juristic approaches. But don't the lawyers, who beleive in legal centralism, and the premier role of law in organizing society, and that the question therefore is how can the shari'a find a way into that and nOT the reverse, get a say too?
HAH
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