Islamic Law: Questions of Authority and Change

The panel themes reflect growing concerns about the challenges modernity poses to the responsiveness and efficacy of Islamic law in the lives of Muslims worldwide in general, and in America in particular.

Though some commentators use “Islamic law” to refer to both Sharî‘a and Fiqh – as if they are interchangeable – in doing so, they ignore a jurisprudential distinction upon which this year’s conference rests.  Where Sharî‘a is understood as perfected divine Law, Fiqh (positive law) is a human approximation of that divine Law.  This leads to questions on legal authority and change in the Islamic context, and to the recognition that the very idea of “Islamic law” is itself contested.  Prospective presenters are asked to consider this distinction as they contemplate questions of authority and change in the Islamic legal tradition.

Panel 1 - Qualifications: Criteria for Determining Islamic Law Expertise

• Paper 1: Authority/Crisis, Identity/Crisis: American Students of Knowledge and Traditional Islam.  An ethnographic study into the phenomenon of Muslim-American students traveling to the Middle East to gain knowledge of Islamic law in traditional settings, and the implications of this phenomenon on conceptions of expertise and scholarly competence in Islamic law. [download abstract]
• Paper 2: Islamic Law in the Colonial State: Change and the Construction of Authority in British Malaya.  An historical analysis of how Islamic law, particularly the law of personal status, became part of a political enterprise of colonial domination, contributing to a conception of legal competence that vested legislative authority with the central state, rather than the polycentric jurists class. [download paper]

Panel 2 - Legal Authority:  What Constitutes Binding Legal Authority?

• Paper 3: Human Legislative Authority in Islamic Law. An inquiry into the medieval Islamic theoretical debates on the role human reason can play in formulating Islamic legal obligations. [download paper]
• Paper 4: The Punishment for Drinking Wine in Islamic law. Given the historical development of the punishment for consuming alcohol, this paper explores the implications of this history on the nature of authority in Islamic law. [download paper]

Panel 3 - Islamic Law: Continuity or Change?

• Paper 5: Towards an Islamic System of Human Rights: Reconciling the Issue of Apostasy.  Relying on the work of the 14^th century Andalusian jurist al-Shatibi, this paper argues for a system of Islamic analysis that allows for greater correlation between international human rights norms and Islamic law.  The paper focuses in particular on the right to religious freedom and the Islamic legal treatment of the apostate. [download paper]
• Paper 6: Alternative Methodologies: The Legal Hermeneutics of Hadith scholars, compilers of Ikhtilaf al-fuqaha’ books, and Khalid Abou El Fadl.  Through an analysis of the classical legal rulings pertaining to divorce, this paper assesses three approaches as models for an alternative jurisprudence to that of the four Sunni schools in our contemporary age, and inquires as to whether there are limits to Islamic Law. [download paper]

Call for Papers

I.  Qualifications: Criteria for Determining Islamic Law Expertise

In the United States, where courts are often asked to adjudicate disputes among Muslims, such courts rely on experts in Islamic law. These experts range from mosque imams to variously trained academic scholars. The traditional system of Islamic legal education designated and imparted the qualifications for legal expertise.  But given the diminishing influence of this system, as states began to favor secular systems of law, what now constitutes expertise in Islamic law?  If a lay individual or a court requires an authoritative statement of Islamic law, how can one determine the competency of an expert? In other words, what indicators (academic, sociological, or otherwise) can and must non-specialists seek in order to determine the quality and competence of an expert?

II. Legal Authority:  What Constitutes Binding Legal Authority?

Whereas the pre-modern Islamic legal tradition vested moral and legislative authority in the juristic class, modern states with Muslim majorities vest legislative authority in a centralized arm of secular government. For Muslims who live in non-Muslim-majority states and in states that do not claim to follow Islamic law, Islamic law arguably operates through informal community norms and obligations.  In light of these three structures of the law (the juristic, the state-centered, and the informal), what can be said about the nature of authority in Islamic law?  Is Islamic law inherently polycentric, or can one consider state-sponsored systems of Islamic law as authoritative Islamic law?  And what is the implication for Muslims living in non-Muslim societies of answers to these questions on the nature of the authority of Islamic law?

III. Islamic Law: Continuity or Change?

Islamic law is commonly viewed as a sacred system of law, thereby suggesting that the legal determinations encapsulated by its legal schools are immutable laws of God.  A formalistic approach to Islamic law – the view that it constitutes a body of unchangeable rules – arguably does not adequately respond to underlying needs for a responsive legal system.  What elements of the Islamic legal tradition are absolute and unalterable, what parts are changeable, and how is this determination made?  For the changeable elements, what are the mechanisms within the methodology of Islamic law that allow for this change to take place?  For example, none of the current Islamic legal schools allow women to lead prayers, yet the schools of Tabari and the Khawarij, which are no longer in existence, allowed women to lead prayer.  Is this relevant for contemporary legal analysis, thereby suggesting that “dead” schools are viable sources of law, or are “dead” schools truly dead as far as their impact on the authority of law and legal determination? As another example, the obligatory punishment for fornication in Islam has been lashing, and the punishment for adultery has been stoning.  To what extent are these rules immutable?  If they are subject to change, on what basis is that change justified from within the Islamic legal tradition?