Ali, S.S --- "Teaching and learning Islamic law in a globalised world: some reflections and perspectives" [2012] LegEdDig 4; (2012) 20(1) Legal Education Digest 12

• Teaching and learning Islamic law in a globalised world: some reflections and perspectives

---

Teaching and learning Islamic law in a globalised world: some reflections and perspectives

S Ali

Journal of Legal Education, Vol. 61, No. 2, 2011, pp 206-230.

There exist significant challenges, both conceptual and methodological, for Islamic law teaching in Muslim and non-Muslim jurisdictions. I suggest adopting a ‘law in context’ approach to appreciate the inherent complexities and intricacies of Islamic law.

One of the core concepts in the study of Islamic law is the Shar’a, both in terms of its centrality to the understanding of the Islamic legal tradition as well as the varying definitions ascribed to it. Shar’a is the overarching umbrella of rules, regulations, values, and normative framework covering all aspects and spheres of life for Muslims. It constitutes the divine injunctions of God (the Qur’an), divinely-inspired Sunna (words and deeds of the Prophet Muhammad recorded as Hadith) as well as the human articulation and understanding of these sources.

Shari’a thus is more than black letter law and legal principles. It encompasses social, moral and ethical normativities affecting human lives.

The Islamic legal tradition includes primary sources such as the Qur’ans and Sunna, and secondary sources, including Ijma (consensus of opinion) and Qivas (analogical deduction). In addition, the range of juristic techniques includes Ijtihad (literally, striving hard and strenuously), which denotes exercising independent juristic reasoning to provide answers when the Qur’an and Sunna are silent on a particular issue. Taqlid (duty to follow) is considered by most students of Islamic law as mere ‘imitation’, to emulate or copy. As a term of jurisprudence, taqlid may be used in the context of accepting someone’s intellectual authority. While inhibiting independent legal formulations, taqlid allowed later jurists a choice from among variant views recorded in authoritative texts.

Similarly, by applying the process or technique of ikhtilaf or the ‘unity in diversity’ doctrine, jurists of the various schools of thought as well as practitioners arrived at positions that were representative of diverse viewpoints.

Tkhayyur means a process of selection and is a term of jurisprudence used to consider possible alternatives from a range of juristic opinions on a particular point of law, with the intention to apply the least restrictive legal principles to issues arising. Takhayyur has been of enormous significance in developing a number of women friendly codes of family laws in Muslim jurisdictions.

Talfiq, translated literally as ‘patchwork,’ implies the process whereby Muslim jurists constructed legal rules by the combination and fusion of opinions derived from different schools of thought on a particular issue.

Maslaha (the public good or in the public interest) or masalihu’l-mursala wa’listislah is a doctrine propounded by Imam Malik who allowed ‘a deduction of law to be based on general considerations of the public good’. There is evidence that qadis (judges) and jurists in Muslim history have employed this concept to override problems arising out of adherence to strict doctrine enshrined in the classical legal texts. Darura (necessity/duress) is a technique applied where it becomes imperative to make prohibited things and situations permissible. Last but certainly not least in the catalogue of juristic techniques is custom or ‘urfas a source of law, also termed ta’amul or ‘adat.

Bearing in mind the vast array of terms and terminology employed in describing the Islamic legal tradition and its various branches, as well as the limitations of translating these from Arabic to English, one of the first issues to grapple with in constructing a course on the Islamic legal tradition relates to appropriate title and terminology. Do we describe it as Shari’a law, Muslim law, Islamic law, or Muhammadan law (recalling the colonial description)? A course entitled Shari’a Law for instance implies that Shar’a constitutes law in the sense of legally enforceable rules and akin to black letter law. But as we have noted above, law is only a component of Shar’a, which covers all aspects of human life, and such a course title would be misleading. Secondly, and more importantly, Shar’a law reflects the position that it is an all-encompassing normative framework of divine rules and hence immutable and unchangeable through human intellectual endeavour. This approach, of assuming Shari’a to comprise solely divine and unchangeable rules, though not necessarily inherent in the title, is prominent in Islamic law teaching in Muslim jurisdictions. In non-Muslim jurisdictions, however, the extent to which a course with this title and content fits within a law curriculum and, whether a better fit might be a program based in a department of theology, religious studies, or Islamic studies, becomes an open question.

Muslim law, on the other hand, is a title that refers to those aspects of the law that are understood by Muslims to be Islamic law. But this understanding is not and cannot be uniform as Islamic law does not have a static, fixed content, since it is extrapolated from a range of sources by different juristic schools of thought in Islam. Broadly, these schools or madhab (plural madahab) as they are called, are Hanafi, Maliki, Shafii and Hanbali (among Sunni Muslims), and Athna-Ashariya, Zaidya and Ismailia schools among Shia Muslims. Implicitly, the term reflects interpretative variations within the Islamic legal tradition as well as contemporary law reform in the Muslim world. For instance Hanafi Muslims do not require an adult Muslim woman to have the consent of her male guardian to enter into a valid contract of marriage whereas followers of the Maliki tradition present it as a legal requirement. Similarly, legal practice in Muslim communities concerning what they believe to be ‘Islamic’ also varies. An example is the practice (among predominantly South Asian Muslims) of divorce by a husband through three pronouncements without any space for reconciliation (commonly known as ‘triple talaq’). Such practice is not considered Islamically legal by Shia Muslims. Despite this more realistic description of the Islamic legal tradition, few courses on the subject have adopted the title, Muslim law.

Finally, we come to Islamic law – the most widely used title for courses on the subject in Muslim and non-Muslim jurisdictions. Such a title describes a course based on the substance and methodology derived from the primary and secondary sources, the general teachings of Islam, the Shari’a as principles of legally enforceable law, and contemporary legislation of Muslim jurisdictions derived thereof. Defined in these terms, Islamic law encompasses not only the theoretical framework of Islamic law, but also the various interpretations of these sources as well as legislative enactments.

In response to these observations, it is fair to note that courses based on the Islamic legal tradition invariably tend to include an element of contemporary legislation in Muslim jurisdictions based upon the Qur’an, Hadith as well as secondary and subsidiary sources of Islamic law. These courses thus present a combination of jurisprudence as well as its application and are not so far off the mark in the choice of title. The present paper uses Islamic law to define and describe scholarship derived from and based on principles of the Islamic legal tradition.

For purposes of faculty in law schools, the critical question underpinning a course on Islamic law is: Does the fact that the sources of Islamic law are believed to be of divine origin affect the way the law should be taught? Students often confuse the teaching of Islam as a religious doctrine with Islamic law, i.e, the principles and body of legal rules based upon it. Islamic doctrine and Islamic law are indeed different and this difference needs to be considered pedagogically.

Early in my experience teaching in non-Muslim jurisdictions, I learned to make very clear from the outset that this was an academic course on legal formulations inspired by the religion Islam as understood and developed by Muslim jurists and scholars over the centuries. I clarify the fact that I am not teaching a course on Islam as a religion, but I also acknowledge that no subject is taught in an ideological, social, or political vacuum. Thus teaching and learning Islamic law, like any other subject, is a political act and never devoid of moral, ethical, social and political context. I am of course stating the obvious but herein lies the difficulty of teaching a subject which draws upon what followers of Islam believe to be the word of God, divine and immutable and beyond reproach or question.

Teaching Islamic law in a Muslim jurisdiction requires a different approach and methodology than one is able to adopt in non-Muslim jurisdictions. My teaching career in Pakistan, a predominantly Muslim country, conditioned me to adopt a descriptive approach when teaching Islamic law and to refrain from critiquing existing scholarship and textbooks. This approach encouraged rote learning to the exclusion of questioning, debating, and arriving at an autonomous position. Criticism was considered an effort to undermine Islam itself and was a risky undertaking fraught with danger of the gravest kind, including being accused of blasphemy.

The general public perception of faculty in public sector law schools in Muslim jurisdictions is that they are lawyers not faqik (jurist); neither are they mufti (a person qualified to give fatwa or opinion). A legal academic in most Muslim jurisdictions is thus restricted to lecturing from textbooks.

Ayesha Shahid describes the approach she had to adopt when lecturing on Islamic law at the University of Peshawar, Pakistan and how it differed from her experience of teaching the subject in the United Kingdom.

If I compare the teaching method followed at Warwick with the method of teaching Islamic law in Pakistan I would say that there is a huge difference between the two (not so much in terms of contents or major topics) and definitely in terms of approach and teaching methodology. The course in Pakistan does not invoke a critical evaluation of the subject. Any questioning of the subject amounts to challenging religious law which is unacceptable to conservative Muslims. As a result the course fails to generate an analytical approach among students and lack of critique and analysis is clearly visible in lectures delivered.

From a pedagogical perspective, I often adopt a comparative law approach when dealing with some issues in my Islamic law teaching. This arises due to the different normative frameworks on which the Islamic legal tradition and western legal systems are based. One of the most challenging and eye-opening comments I received in my feedback on the Islamic Law course at Warwick University, was the following:

The module was very interesting and I enjoyed the subject matter ... My key concern was that we weren’t challenged to view the law from an Islamic viewpoint. Instead, we were seeing it from the western eye, which made it seem antiquated or even wrong.

On closer inspection, I realised that unconsciously, as western academics, we tend to use a western knowledge system, both in substance and procedure, as our reference point when teaching Islamic law. Thus, when engaging with concepts and institutions of family law, for instance, we consider monogamous marriage as the standard form while polygamous unions are considered freakish or immoral. The starting point in many textbooks as well as teaching sessions is the oft-repeated definition of marriage in Hyde v. Hyde, where marriage is stated to be the union of one man and one woman to the exclusion of all others. Islamic family law students from western jurisdictions therefore approach and judge polygamy from their moral, ethical standpoint and find it difficult to engage with discussion around the Qur’anic verses on the subject.

It is necessary for Islamic Law teaching to adopt a ‘law in context’ approach where the meaning of law is understood and explored in its wider social, economic, political, ethical and moral sense and not confined to a reading of the text as a formal, written piece of legislation. Additionally, and more importantly, any question on Islamic law is open to more than one legal response and, barring a few exceptions, more than one set of laws may well be extrapolated from the same sources. For instance, the opening teaching sessions would be well spent on a concise overview of sources of the Islamic legal tradition against the backdrop of the Sunni-Shia schism and the evolution of the schools of juristic thought i.e, Hanafi, Maliki, Shafi’i, and Hanbali in the Sunni madhab, and Athna-Ashariya, Ismailia, and Zaidya in the Shia sect. An additional challenge in non-Muslim jurisdictions where the student population taking Islamic Law has no prior knowledge of or exposure to Arabic or Islam, is the need for a glossary of terms with English translation.

Any course on Islamic law must present a comprehensive history of the primary and secondary sources of what constitutes Islamic law as well as juristic techniques employed in the classical period of its evolution. One of the initial class assignments could be as follows: ‘How do we use the Qur’an as a source on which to construct a law of evidence?’ After compiling relevant Qur’anic verses on the subject, the student takes into consideration the historical and cultural context of the verse and tries to determine the factors leading to a certain law on the subject. Last, but not least, the student should engage the various interpretations of a particular set of verses by different schools of juristic thought as well as scholars belonging to Shia and Sunni sects.

For instance, Sunni schools of thought consider the triple talaq (divorce pronouncement) as reprehensible yet legally valid as opposed to the Shia sect that considers it non-binding and invalid.

We might begin by sharing the genesis of Islamic criminal law on extramarital sexual relationships (zina), its definition, evidentiary rule, and punishment. Students are asked to follow all the relevant verses in the Qur’an and construct a legally enforceable rule and compare it with existing legislation in some Muslim countries. The Qur’an punishes extramarital sexual relations along a spectrum, from declaring such behaviour a moral and legal transgression and punishable as tazir to making it a hadd offense triggering harsh mandatory punishments. Verse 17:32 of the Qur’an prescribes thus: ‘And do not go near fornication (zina) as it is immoral and an evil way.’ No particular punishment was prescribed at this stage.

Chapter 4 of the Qur’an entitled An-.Nisa (Women) declares that, ‘If any of your women are guilty of lewdness, take the evidence of four (reliable) witnesses from among you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain them some (other) way.’

The students may read the above verses as applicable to zina where the prescribed punishment is imprisonment. This verse may also be termed as a precursor to the stricter hadd punishment. But, as in other Quran’ic verses, there is space for atonement and forgiveness.

A contextual reading of the primary sources of Islamic law thus provides a base upon which to build student skills for later parts of the course when we discuss legal reform in the Muslim world. The case study also offers an opportunity to challenge the entire situation (offence and punishment) in the context of contemporary international human rights law.

Popular understandings of Islam and Islamic law as doctrinal, fossilised, and backward looking tend to be the prism through which Islamic legal scholarship in English is read, understood and contextualised. A number of responses may help dispel these notions. For instance, an Islamic Law course is not like western courses in contracts, trusts or banking law and so on, because Islamic law is not statute law and thus has no single definitive content. Although in recent years, codification of some areas of Islamic law has occurred, the vast corpus of Islamic law continues to be taught and applied as ‘principles of law’ rather than ‘the law’.

Another challenge is to develop high quality teaching and learning resources in a range of Islamic law modules, not simply those confined to Muslim family law. Most institutions limit themselves to a family law course where there is abundant literature, and this passes as Islamic law in toto. The United Kingdom Council of Legal Education (UKCLE), the University of Warwick, and the Commonwealth Legal Education Association through an Islamic Law Curriculum Development Project have developed a number of teaching manuals as well as a glossary of Arabic/English words and a bibliography. This is work in progress and we hope to expand and enrich these resources to encourage and support teachers of Islamic law globally.