Llewellyn's Canons and the Shari'a
Some time toward the end of his career, Karl Llewellyn, the doyen of the Legal Realists, wrote this wonderful little law review article that consisted of statutory canons of construction in two columns. Each canon in the first column contradicted a canon in the second that was on the same row. Thus for example, "A statute cannot go beyond its text" would appear in the first column, and "To effect its purpose, a statute may go beyond its text" in the second on the same row. The intent should be obvious, to demolish the notion that there is such a thing as a useful canon of statutory construction, and to enhance the principle of choice and discretion affordable to decisionmakers. It is a bit facile and too easily refuted, in that Scalia, for example, would never admit to adopting the second canon listed above (and said as much in his own book A Matter of Interpretation), but nonetheless quite effective as a heuristic device.
Recent events have given me much cause to think over Llewellyn's opposing canons, because I think I could develop quite a few applicable to the Muslim world generally. One that immediately came to my mind, though more applicable to the Arab world than the Muslim, is the following:
1. It is imperative that the International Criminal Court investigate the actions of nations that have neither the will nor the desire to do a proper investigation on their own. Arab League, on the importance of an investigation into the recent Israeli incursion into Gaza.
2. The International Criminal Court is a highly politicized tribunal with little to no legal authority that effectively acts as nothing more than the policy wing of the United States and Western Europe. Arab League, on the indictment of Sudanese President Omar al-Bashir.
It's not that I think we Arabs are wrong when we say the US often has egregious double standards, it's just that I wonder why we can't recognize our own. The Arab position is basically that we resist the colonialism of the United States and its client state Israel in all instances, and the ICC is nothing but an instrument in that game. To the extent it can be used to embarass or injure Israel, all the better, but to the extent that it is used by the colonizers themselves against the colonized, then even genocide cannot cleanse it of the stench of colonialism and imperlialism. Human rights aren't the point, the Resistance is. It's all a bit embarrassing I think, this impossible juxtaposition.
Another contradictory set, more to the point of the shari'a and its interpretation, would be the following:
1. The shari'a bans artifice. (Muslim religious parties, when discussing family law).
2. It is important to develop the mechanisms of the shari'a flexibly in order to suit the needs and demands of the time. (Same parties, discussing Islamic finance).
It was Cherif Bassiouni, the leading light of the Arab and Muslim law professoriate at least in my view, a true courageous voice from a devout Muslim in defense of humanism and human rights on all fronts and in all capacities, who led me to consider these thoughts. Cherif's basic position on Muslim inheritance law, which divides estates in a manner that gives the male twice the portion of the female, is this:
Such rules on inheritance derive from a place and a time when men were responsible for providing forms of welfare that the state now provides. So if the man receives twice as much, he should now be taxed the additional portion, the money goes to the state, and the state assumes the welfare role originally assigned to the man. All else distributed equally.
It's all quite ingenious, but I couldn't help smiling and thinking "Cherif, you're more the optimist than me if you think Islamists are going for THAT." (He will be presenting these ideas and more on a book he has been working on for decades on Islamic law. If you care at all about the subject, it has to be a must read whenever it does come out.)
Yet this solution will be rejected but not, as the Islamist would undoubtedly say in opposition, because the shari'a bans artifice designed to thwart its terms. That may be a canon of religious interpretation in the modern world (was definitely not in the premodern, but I've taken enough hatchets to classical doctrine for now), but the flexibility canon cited above (we must be flexible in our applications to meet modern needs), through which such obvious artifices as the murabaha are sanctioned, are equally applicable.
In fact, Cherif's system is to my own liberal mind considerably less laced with artifice than the murabaha. He is actually seeking to fulfill a purpose or a goal of the shari'a to his (our)mind, though of course the Islamist would argue he is thwarting a goal, which only goes to prove how impossible it is to develop sensible interpretive guidelines based on "goals" of the shari'a. Still, Cherif can articulate a purpose, the only purpose of the ubiquitous murabaha in Islamic finance is to achieve interest without claiming to. (To review, the murabaha method is buy the item, sell it at a markup reflecting interest for an amount to be paid in the future, and often enough the seller then sells the item right back into the market for its cash value. Borrower has cash value, and an obligation to pay cash plus interest in the future. Lender has paid out cash value, and receives the amount with interest to be received in the future. What's that saying about lipstick on a pig again?)
The point ultimately is that it has little to do with interpretive fidelity, it has to do with what portions of the shari'a the Islamist feels must be taken seriously, and what can be winked at. Family law has to be taken seriously, so the shari'a bans artifice. Islamic finance not so much, so flexibility is important to meet the needs of the times, though at least (and only) rhetorically the goals of fairness and social justice still remain paramount. It's not because of any sort of principle of interpretation, it's just political preference.
This is all developed in my latest article, which will be on SSRN soon enough. Stay tuned for that.
HAH
Recent events have given me much cause to think over Llewellyn's opposing canons, because I think I could develop quite a few applicable to the Muslim world generally. One that immediately came to my mind, though more applicable to the Arab world than the Muslim, is the following:
1. It is imperative that the International Criminal Court investigate the actions of nations that have neither the will nor the desire to do a proper investigation on their own. Arab League, on the importance of an investigation into the recent Israeli incursion into Gaza.
2. The International Criminal Court is a highly politicized tribunal with little to no legal authority that effectively acts as nothing more than the policy wing of the United States and Western Europe. Arab League, on the indictment of Sudanese President Omar al-Bashir.
It's not that I think we Arabs are wrong when we say the US often has egregious double standards, it's just that I wonder why we can't recognize our own. The Arab position is basically that we resist the colonialism of the United States and its client state Israel in all instances, and the ICC is nothing but an instrument in that game. To the extent it can be used to embarass or injure Israel, all the better, but to the extent that it is used by the colonizers themselves against the colonized, then even genocide cannot cleanse it of the stench of colonialism and imperlialism. Human rights aren't the point, the Resistance is. It's all a bit embarrassing I think, this impossible juxtaposition.
Another contradictory set, more to the point of the shari'a and its interpretation, would be the following:
1. The shari'a bans artifice. (Muslim religious parties, when discussing family law).
2. It is important to develop the mechanisms of the shari'a flexibly in order to suit the needs and demands of the time. (Same parties, discussing Islamic finance).
It was Cherif Bassiouni, the leading light of the Arab and Muslim law professoriate at least in my view, a true courageous voice from a devout Muslim in defense of humanism and human rights on all fronts and in all capacities, who led me to consider these thoughts. Cherif's basic position on Muslim inheritance law, which divides estates in a manner that gives the male twice the portion of the female, is this:
Such rules on inheritance derive from a place and a time when men were responsible for providing forms of welfare that the state now provides. So if the man receives twice as much, he should now be taxed the additional portion, the money goes to the state, and the state assumes the welfare role originally assigned to the man. All else distributed equally.
It's all quite ingenious, but I couldn't help smiling and thinking "Cherif, you're more the optimist than me if you think Islamists are going for THAT." (He will be presenting these ideas and more on a book he has been working on for decades on Islamic law. If you care at all about the subject, it has to be a must read whenever it does come out.)
Yet this solution will be rejected but not, as the Islamist would undoubtedly say in opposition, because the shari'a bans artifice designed to thwart its terms. That may be a canon of religious interpretation in the modern world (was definitely not in the premodern, but I've taken enough hatchets to classical doctrine for now), but the flexibility canon cited above (we must be flexible in our applications to meet modern needs), through which such obvious artifices as the murabaha are sanctioned, are equally applicable.
In fact, Cherif's system is to my own liberal mind considerably less laced with artifice than the murabaha. He is actually seeking to fulfill a purpose or a goal of the shari'a to his (our)mind, though of course the Islamist would argue he is thwarting a goal, which only goes to prove how impossible it is to develop sensible interpretive guidelines based on "goals" of the shari'a. Still, Cherif can articulate a purpose, the only purpose of the ubiquitous murabaha in Islamic finance is to achieve interest without claiming to. (To review, the murabaha method is buy the item, sell it at a markup reflecting interest for an amount to be paid in the future, and often enough the seller then sells the item right back into the market for its cash value. Borrower has cash value, and an obligation to pay cash plus interest in the future. Lender has paid out cash value, and receives the amount with interest to be received in the future. What's that saying about lipstick on a pig again?)
The point ultimately is that it has little to do with interpretive fidelity, it has to do with what portions of the shari'a the Islamist feels must be taken seriously, and what can be winked at. Family law has to be taken seriously, so the shari'a bans artifice. Islamic finance not so much, so flexibility is important to meet the needs of the times, though at least (and only) rhetorically the goals of fairness and social justice still remain paramount. It's not because of any sort of principle of interpretation, it's just political preference.
This is all developed in my latest article, which will be on SSRN soon enough. Stay tuned for that.
HAH
Great post.
There is certainly an ideological element to it. (Certain things are more threatening to conservative-minded Muslims, and so on.) But there is also an issue of what kinds of things are on the books in a very clear way, what kinds of things are more immune to structural changes in the way society runs (family law: quite immune; economics: not immune at all), and what kinds of things are susceptible to hiyal. The costs of calling for change on things which are widely known to be "part of the tradition" and which only benefit unpopular social groups are higher than calling for change either on matters which don't really fit the modern condition or are very abstract and technical.
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Thanks for the foretaste of your forthcoming article: it's certainly whetted this reader's appetite!
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The inheritance example is to me, an example of where the statute cannot go beyond its text for lack of an obvious intention. I find Cherif Bassiouni's inheritance tax on a man's share quite clumsy to be honest. While I can appreciate the sentiment, I wonder if the tax also applies against a woman when her share ends up being, as is often the case, several times the share of her father? ex. when a daughter takes 1/2 and a father takes 1/6. Or whether the tax does not apply to half brothers and sisters that take equal shares... I also wonder if the untaxed share of the female is now up for grabs as community property rather than her own untouchable separate property, or whether the rights of her children's provision can now be claimed from her property in addition to her husband's (now taxed) share from his family?
to presume the division of shares "derive from a place and a time when men were responsible for providing forms of welfare that the state now provides" is really quite silly. The sharia provides for various outcomes, many of which do not result in a female's share being lower than a man's. Consider the shares of mother vs. father, or daughters vs. fathers.
ironically, when the verse was revealed, it is said that the people at the time objected to the divisions as being unfair for similar reasons. Why should a daughter take anything when the tribal leader is the source of provision? Giving a baby inheritance? madness! The reality is that the shares are a clear text; inferences and assumptions regarding their objectives and solutions that attempt to fulfill the goals differently are going to be wrought with flaws that alter a precise division. just my thoughts
Finally, I suppose if you consider the state to be the distributer of welfare and that the distribution of welfare to be the sole goal of inheritance law, why stop at taxing the man's share? Just have all estates escheat to the state and people can be provided for from the treasury. How's that for equality among the sexes?
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