Fordham International Law Journal

Volume 30, Issue 1 2006 Article 5

Copyright c 2006 by the authors. Fordham International Law Journal is produced by The Berke-
ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Legal Pluralism Between Islam and the
Nation-State: Romantic Medievalism or
Pragmatic Modernity?
Sherman A. Jackson
Abstract
This Essay attempts a reconciliation of sorts between two perspectives on legal pluralism, via
specic reference to Islamic law, most notably in its pre-modern guise. The Essay begins with
a provisional commitment to legal centralism, but primarily as a means of securing a functional
place for sub-State reglementary regimes. To this end, legal centralism, as presented, is tempered
by a demonstration that, even where the State enjoys an exclusive monopoly on the application of
sanctions with impunity, it need not be the actual source of every rule it recognizes or applies as
law.
ESSAY
LEGAL PLURALISM BETWEEN ISLAM
AND THE NATION-STATE:
ROMANTIC MEDIEVALISM OR
PRAGMATIC MODERNITY?*
Sherman A. Jackson**
INTRODUCTION
Legal pluralism emerged as a topic of serious scholarly dis-
cussion as far back as the 1930s.
1
The ensuing discourse among
sociologists, anthropologists, and professional lawyers generated
a multiplicity of attitudes towards and definitions of legal plural-
ism, all of which bore the ideological imprint of the respective
disciplines. In 1986, however, the anthropologist John Griffiths
introduced a binary distinction between what he termed
"strong" and "weak" legal pluralism, the substance of which
came to be widely recognized as a basic point of reference.
2
Var-
iations on this nomenclature would include "classic" versus
"new" legal pluralism,
3
or even the more transparent 'juristic"
versus "sociological"
4
legal pluralism.
According to Griffiths, "strong" (i.e., new, sociological) legal
pluralism referred to and resulted from the fact that not all law
is State law administered by a single set of State-sponsored insti-
tutions. "Weak" (i.e., classic, juristic) legal pluralism, on the
other hand, referred to situations in which a State or sovereign
* Earlier versions of this Essay were presented at Columbia Law School, February
28, 2005, and at Vanderbilt Law School, April 18, 2005. A very special thanks goes to
Professor George Fletcher for inviting me to Columbia's Legal Theory Workshop. I
would also like to thank all those who attended these lectures and contributed to the
lively discussions, from which I benefited greatly.
** Professor of Arabic and Islamic Studies, University of Michigan, Department of
Near Eastern Studies, Visiting Professor of Law, University of Michigan Law School.
1. See, e.g., EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW
(Walter L. Moll trans., Russell & Russell Inc. 1962) (1936).
2. See generally John Griffiths, What Is Legal Pluralism?, 24 J. LEGAL PLURALISM &
UNOFFiCAL L. 1 (1986).
3. See Sally Engle Merry, Legal Pluralism, 22 LAw & Soc'v REv. 869, 872 (1988).
4. See Griffiths, supra note 2, at 5; Merry, supra note 3, at 871.
158
LEGAL PLURALISM
power recognized, validated, and backed different bodies of law
for different groups in society.
5
To be sure, this choice of
"strong" and "weak" was neither idle nor value-neutral.
It re-
flected, rather, the inner workings of an ideological campaign to
break the hegemonic influence of professional lawyers and legal
scholars who proceeded on the notion that law in the proper
sense is State law and that it is only in the sense (and to the
extent) that the State recognizes alternative systems or reposito-
ries of law that any legal pluralism exists. The prototypical exam-
ple of this 'Juridical" or "classic" legal pluralism was the hybrid
orders that resulted from the recognition granted by the Euro-
pean colonial powers to "tribal," "customary," or "indigenous"
laws in the territories over which they came to dominate.
6
Grif-
fiths-along with a growing contingent of anthropologists, soci-
ologists and even some legal scholars-wanted to break out of
this mindset and insist that the juristic definition of law was
under-inclusive and that below, outside, and all around the State
were other "forms" and "systems" of reglementary regimes which
the State neither exercised complete control over nor had the
ability to eradicate.
Equally, however, if not more important was the argument
that the existence of sub-State reglementary regimes was not an
idiosyncratic feature of pre-modern, underdeveloped, or "primi-
tive" societies. On the contrary, sub-State regimes were inextri-
cably woven into the very warp and woof of modern Western
States, from "the rules set by nightclubs and applied by their
bouncers"
7
to those written and unwritten regulations governing
"guilds, churches, factories and [even] gangs."
'
This was the re-
ality that classic/juristic legal pluralism had overlooked, ignored,
or minimized as law. And it was part of the effort to correct this
oversight and highlight-indeed, privilege-the hidden reality of
sub-State reglementary regimes that informed the nomenclature
of the defenders of legal pluralism. The aim, in other words, was
to suppress the value and significance of juristic or classic legal
5. See Griffiths, supra note 2, at 5.
6. See, e.g., Julius Lewin, The Recognition of Native Law and Custom in British Africa, 20
J. ComP. LEGIS. & INT'L L. 16 (1938) (tracing British colonial accommodation of "native
law and custom").
7. See Emmanuel Melissaris, The More the Merrier?, 13 Soc. & LEGAL STUD. 57, 74
(2004).
8. Griffiths, supra note 2, at 17.
160 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 30:158
pluralism and relegate it to a position of lesser importance,
whence its depiction as "weak." Meanwhile, the existence within
modern, Western States, of alternative, sub-State regimes was to
be recognized and elevated to a new level of prominence via the
designation "strong" legal pluralism.
All of this points up a perduring conflict between the soci-
ologists and anthropologists of law, on the one hand, and the
professional lawyers and legal scholars, on the other. The latter,
argue the former, have been imprisoned by an ideology of "legal
centralism," according to which all law is and should be State-
sponsored law, uniform for all persons, equally applied across all
social groups, and emphatically superior to, if not exclusive of,
any and all other systems or repositories of law.
9
Law, on this
understanding, must be administered by a single, integrated set
of State institutions. Furthermore:
To the extent that other, lesser normative orderings, such as
the church, the family, the voluntary association and the eco-
nomic organization exist, they ought to be and in fact are
hierarchically subordinate to the law and institutions of the
state.
10
On this understanding, the only law that really exists is law
that is recognized and administered by the State, and the only
legal pluralism that can exist is one where the State recognizes
multiple sources, systems, or regimes of law. Sociological and
anthropological approaches, on the other hand, want to deny
the State this preeminence by both expanding the definition of
law and insisting that all sorts of quasi-independent sub-State
reglementary regimes function in modern society.
11
In other
words, leaving aside the ideological reflexes of legal centralism,
the actual situation on the ground, argue the proponents of this
approach, both reflects and should be recognized as de facto le-
gal pluralism.
To be sure, there is a practical disconnect between these
two approaches to and valuations of legal pluralism. As the soci-
ologists and anthropologists of law clearly demonstrate, State law
is not the only reglementary force in modern, Western society,
9. See id. at 9.
10. Id. at 3.
11. See EHRLICH, supra note 1, at 39, 55-60; Griffiths, supra note 2, at 5-6, 9-10;
Melissaris, supra note 7, at 73-76. See generally Merry, supra note 3.
LEGAL PLURALISM
not to mention the rest of the world. At the same time, as the
legal centralists would insist, within any given polity, the State is
under no obligation to recognize any of these alternative regimes;
nor does their existence necessarily provide any insulation from
State laws or sanctions.
12
Therefore, if the aim-again, within a
given polity-is to gain not merely academic but practical recog-
nition for sub-State reglementary regimes and/or endow these
with the ability to refract if not preempt the application of State
rules and sanctions, it seems that legal centralism is the only
framework within which this might be accomplished. For, ulti-
mately, only the State can convert rules into sanctions that are
applied with anything approaching immunity. As such, State rec-
ognition must be recognized as the sine qua non of any truly
meaningful legal pluralism.
This brings us, of course, to an ideological impasse. From
the perspective of sociologists and anthropologists of law, ceding
to the State a rightful monopoly over law can only confirm the
State's homogenizing authority and reduce legal pluralism to its
most meaningless effect. From the perspective of the legal estab-
lishment, meanwhile, legal pluralism, both weak and strong,
threatens to undermine this very authority and with it the integ-
rity and sovereignty of the modern Nation-State.
In this Essay, I shall attempt a reconciliation of sorts be-
tween these two perspectives on legal pluralism, via specific ref-
erence to Islamic law, most notably in its pre-modern guise. I
shall begin with a provisional commitment to legal centralism,
but primarily as a means of securing a functional place for sub-
State reglementary regimes. To this end, legal centralism, as I
present it, will be tempered by a demonstration that, even where
the State enjoys an exclusive monopoly on the application of
sanctions with impunity, it need not be the actual source of every
rule it recognizes or applies as law. On the one hand, this pre-
serves enough of the modern State's presumed monopoly over
law to assuage misgivings about assaults on its sovereignty. At the
same time, it holds out the possibility for various sub-State re-
gimes to gain the effect of bona fide law, despite their diversity
and despite their provenance in sources other than the State.
12. See, e.g., Gonzales v. 0 Central Espirita Beneficente Unaio do Vegetal, 126 S.
Ct. 1211, 1216-17 (2006); Employment Div., Dep't of Human Res. of Or. v. Smith, 494
U.S. 872, 878-79 (1990).
2006]
162 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 30:158
A. Legal Centralism Between Politics and Law
At bottom, legal centralism is not a legal doctrine but a po-
litical one. It emerged as a corollary to the rise of the modern
Nation-State and its newly asserted monopoly over law and the
distribution of rights. As Georges Gurvitch so aptly observed,
'judicial monism correspond[s]
to a contingent
political situa-
tion, namely the creation of large modern States between the
sixteenth and nineteenth centuries."'" Along with law, however,
the new Nation-State seems also to have co-opted the legal pro-
fession as well, at least in the sense that lawyers and legal profes-
sionals come to see law inherently as the exclusive preserve of the
State inherently, a perspective that apparently begins with legal
education and extends over the life of a professional career.
Speaking in this regard, Emmanuel Melisarris notes:
The research programme of academic legal studies seems to
have become an extension of the law of the state. At best, it
occasionally expands into new areas of legal regulation, such
as alternative dispute resolution mechanisms, but only be-
cause and to the extent that the latter are endorsed by or co-
ordinated
with state law.
14
From this vantage-point, lawyers habitually conflate the polit-
ical reality of law as the zealously guarded preserve of the mod-
em State with the very nature of law itself. This has the subtle
effect of imposing a certain teleological prism through which
not "the people" but the State is seen as the primary constituent
of law.
15
From here, numerous conclusions about law (and
politics) are asserted and assumed rather than validated, while
13. Melissaris, supra note 7, at 59 (describing Gurvitch's observations on judicial
monism).
14. Id. at 76. Melissaris believes, for this reason, that only academic theory can
advance the cause of legal pluralism, which will be a long time in gaining serious con-
sideration in institutionalized jurisprudential discourse. See id.
15. One might ask in this regard, for example, whether the principle of "equality
before the law" is primarily designed to serve the concrete needs of the people, espe-
cially in an ethnically, religiously, and culturally diverse society, or whether its primary
function is to promote and preserve the legitimacy of the State. As Griffiths points out:
"the concepts of 'difference' and 'sameness' are not empirical, but reflect a particular
juridical value, namely that differences of person ought in general not to be taken ac-
count of. There is nothing in the nature of the world or of social life [that would
require] anyone to agree.., that the acts of any ordinary person and of a businessman,
of a clerk and of a layman, of a patrician and of a plebian, etc., are really the same."
Griffiths, supra note 2, at 13.
LEGAL PLURALISM
others are summarily proscribed without ever having been co-
herently or substantively disproved.
From the perspective of "legal orthodoxy" (read legal cen-
tralism), legal pluralism (strong and weak) is incompatible with
at least three basic desiderata of a modern legal system. First, it is
incompatible with the "rule of law."
' 16
Second, it compromises
the State's rightful monopoly on the legitimate use of violence,
including the deprivation of life, property, or freedom.'
7
Third,
it violates the fundamental principles of "equality before the law"
and "universality."
8
While legal centralists, particularly in modern Western soci-
eties, may hold these values to be so basic that they can hardly
imagine a functional legal (cum political) order that does not
enshrine them as first principles, this should not seduce us into
the disjunctive conclusion that State monopoly over law is the
only arrangement that can accommodate these interests. For
history has known both nomocracies and nomocratic cultures
that embrace all of these principles, with no commitment to a
legal philosophy that recognizes the State as the beginning and
end of all law. Islam is a case in point.
B. Islam and Legal Centralism
It has been long recognized that Islam
19
is a religion in
which not theology but law emerged as the manifestation of its
genius. As the celebrated scholar of Islamic law Joseph Schacht
once put it:
Islamic law is the epitome of Islamic thought, the most typical
manifestation of the Islamic way of life, the core and kernel of
Islam itself.... Theology has never been able to achieve a
comparable importance in Islam; only mysticism was strong
enough to challenge the ascendancy of the Law over the
16. Luke McNamara, 'Equality Before the Law' in Polyethnic Societies: The Construction
of Normative Criminal Law Standards, 11 MURDOCH UNIV. ELEC. J.L. 9, http://www.
austlii.edu.au/au/joumals/MurUEJL/2004/18.html (last visited Sept. 22, 2006).
17. See id.; see also Melissaris, supra note 7, at 63-65.
18. See McNamara, supra note 16, 9, 12, 21, 37.
19. My characterizations in this Essay are based on an analysis of the majority ex-
pression of Sunni Islam. Shiite Islam would require a different treatment, owing to
certain key differences in the two systems' management of the problem of religious
authority. See, e.g., 'ALLAMAH SAYYID MuH AMAt HUSAYN TABATABA'I, SHI'ITE ISLAM 9-16,
42-45 (Seyyed Hossein Nasr trans., 1975).
2006]
164 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 30:158
minds
of Muslims."
20
Not only, however, did Islam develop into a nomocracy, i.e.,
a society governed by a system of laws, it spawned a nomocratic
culture as well. Early in its history, Sunni Islam adopted a doc-
trine of prophetic infallibility, 'ismat al-anbiyd', according to
which the Prophet Muhammad (like all prophets) was credited
with divine protection from sustaining errors in his scriptural in-
terpretations.
2
' Far more important than the substance of this
doctrine, however, was its corollary, namely that only the Prophet
was infallible. On this understanding, no other individual, not
even the Caliph, could claim interpretive infallibility.
22
For Sun-
nism, the divine protection implied by 'ismat al-anbiyd' passed
not to any individual but to the interpretive community as a
whole.
2
' As such, only those interpretations on which the com-
munity of jurists unanimously agreed (such Unanimous Consen-
sus going under the technical term, "Ijmd") were deemed infalli-
ble and thus binding on the entire community.
24
Where, how-
ever, their collective efforts resulted in disagreement, competing
views simply had to be left to the market of debate.
25
To be sure,
this was not an exercise in intramural religious relativism. On
the contrary, pre-modern Islam confirmed Stanley Fish's adum-
bration of the distinction between relativism and pluralism:
[T] he absolutely true, exists, and I know what it is. The prob-
lem is that you know, too, and that we know different things,
which puts us... armed with judgments that are irreconcila-
ble, all dressed up with nowhere to go for authoritative adju-
dication.
26
In the absence of the infallible Prophet Muhammad coming
back and determining this or that view to be correct, there was
indeed "nowhere to go for authoritative adjudication," that is,
other than the intellectual market of exchange. Here, however,
we come upon another relevant feature of pre-modern Muslim
20. JOSEPH SCHACHT, AN INTRODUCTION TO IsLtAMIc LAw 1 (1964).
21. See Sherman A. Jackson, Jihad and the Modern World, 7J. IsLAMIc L. & CULTURE
1, 6 (2002).
22. See id.
23. See SCHACHT, supra note 20, at 59.
24. See id.
25. See id. at 59-60; Jackson, supra note 21, at 6.
26. See Stanley Fish, Postmodern Warfare: The Ignorance of our Warrior Intellectuals,
HARPER'S MAGAZINE, July 1, 2002, at 33.
LEGAL PLURALISM
civilization, namely its commitment to a "public reason" via
which to negotiate interpretive
disputes.
27
In an insightful essay, Exotericism and Objectivity in Islamic Ju-
risprudence, Professor Bernard Weiss points to the centrality of
the doctrine that the will of the Lawgiver (God) in Islam is made
manifest almost exclusively through the "uttered word" or lafz,
i.e., of God and His Messenger.
28
Similarly, only that which is
deducible from the uttered word through exoteric means, i.e., the
locutionary (dalil lafzij and illocutionary (dalil 'aql) dictates of
words, is recognized as valid interpretive proof.
29
The resulting
legal formalism,

developed and institutionalized by the disci-
pline of usill al-fiqh (legal methodology), aimed not simply to
exclude all means of apprehending meaning that were closed or
limited to the world of subjective experience, but to ensure that
there was equal access to all legal sources and proofs and that
these remained in the public domain.
The result was a nomocratic culture of what William W. Bar-
tley III would term 'justificationism.
' 3 1
In this culture, all asser-
tions of legal doctrine (read rights and obligations) had to be
justified on the basis of objective legal sources and proofs. In
the sense that Muslim society was governed by a set of legal rules
whose derivation was itself governed by a strict set of formal rules
(i.e., usfil alfiqh), Islam might be characterized as having repre-
sented an instance of "the rule of law squared."
And yet, Islamic law was emphatically neither the product
nor preserve of the Muslim State. In fact, it developed in con-
scious opposition to the latter. Private Muslims during the first
two centuries or so after the death of the Prophet Muhammad
(632 CE) succeeded in gaining recognition for their interpretive
efforts as representing the most reliable renderings of divine in-
tent. By the early decades of the third/ninth century, a fledgling
interpretive methodology (ustl al-flqh) had emerged, with the
Qur'dn, Sunna (normative practice and supplemental commen-
27. See Jackson, supra note 21, at 6.
28. See Bernard Weiss, Exotericism and Objectivity in Islamic Jurisprudence, in ISLAMIC
LAW AND JURISPRUDENCE 53, 55 (Nicholas Heer ed., 1990).
29. See id. at 55-58.
30. On the role and centrality of linguistic formalism in Islamic jurisprudence, see
generally, Sherman A. Jackson, Fiction and Formalism: Towards a Functional Analysis of
Usl al-Fiqh, in STUDIES IN ISLAMIC LEGAL THEORY 177-201 (Bernard G. Weiss ed., 2002).
31. See, WILLIAM WARREN BARTLEY, III, THE RETREAT TO COMMITMENT 73, 88, 91-92,
97, 98, 102 (1984) (elaborating on his so-called justificationism).
2006]
166 FORDHAM1NTERNATIONALLAWJOURNAL [Vol. 30:158
tary of the Prophet Muhammad), and the Unanimous Consen-
sus Qjmd) of the jurists as primary sources and analogy (qiyds) as
the main method of extending the law to unprecedented
cases.
3 2
During this same period, the jurists-still private and doggedly
independent of the State-began to organize themselves into
formal interpretive communities or schools of law, known as
madhhabs. By the fourth/tenth century, the madhhab had
emerged as the exclusive repository of legal authority. From this
point on, all juristic interpretation, if it was to be sanctioned as
"orthodox"
would have to take place within the boundaries
of a
recognized school. By the end of the fifth/eleventh century,
based on the principle of survival of the fittest, the number of
Sunni schools would settle at four: the Hanafi, Mdliki, Shdfi'i,
and Hanbali schools, all equally orthodox, all equally authorita-
tive and all emphatically independent of the State.
3
' These were
the Sunni schools that would pass down into modern times.
It is important to note in this context that the role of the
jurists was not purely or even primarily academic, as I under-
stand the role of private legal scholars to be in the Civil Law
tradition.
34
As I have noted elsewhere, the legal opinion or
fatwa of the jurist carried the potential to confer concrete, ac-
tionable legal rights and obligations, independent of the State.
5
Legal authority, in other words (as distinct from power,
6
which
the State did have) derived not from the State but from the com-
munity ofjurists. Thus, when a man came to ajurist and asked if
his statement to his wife constituted a declaration of divorce, the
jurist's (mufti's) answer could have the effect of actually preserv-
ing or terminating this marriage, again, independent of any
State supervision or validation.
7
Clearly, Islamic law was not
32. See ScHAcr, supra note 20, at 17-18, 47-48, 59-60.
33. See id. at 57-68.
34. See ALAN WATSON, THE MAKING OF THE CIVIL LAw 172-74 (1981).
35. See SHERMAN A. JACKSON, ISLAMIC LAW AND THE STATE: THE CONSTITUTIONAL
JURISPRUDENCE OF SHIHAB AL-DfN AL-QARAF! 219 (Ruud Peters & Bernard Weiss eds.,
1996). In the summer of 2004, I attended a question and answer session held by the
Grand Mufti of Egypt, Shaykh 'Ali Jum'ah, at the mosque of Sultan Hasan in Cairo,
following the Friday prayer. At one point, he was asked whether it is permissible for a
Muslim to sell alcoholic beverages, "even if this activity should take place in a state-
owned institution." To this the Mufti responded, "What has the state to do with this?
This is my jurisdiction (dawlat ayy? Da batd'f ana)!"
36. Power, as I use the term, is the ability to force compliance. Authority, on the
other hand, is the ability to enlist compliance on the belief that it is right to comply.
37. I say "could have the effect" here for two reasons. First, the legal opinion qua
2006] LEGAL PLURALISM
grounded in any commitment to any strict dictates of legal cen-
tralism, certainly not in the sense of any State monopoly over
law. And yet, it emphatically and unequivocally endorsed the
principle of the rule of law, indeed, as I have suggested, "the rule
of law squared." As we shall see, while the only system of law con-
sistently invoked by Muslim States was Islamic law, or shar$'ah,
the Muslim State resigned itself to both the distinction between
executive and interpretive authority and its complete lack of the
latter. In determining the substance of Islamic law, the Muslim
jurist stood alone, and s/he"
8
was accountable to no one but
God. Similarly, the process of acquiring and passing on legal
authority took place entirely outside the apparatus of the State.
In the words of the late, great Islamicist, George Makdisi:
"Neither Caliph, nor sultan, nor their viziers, nor any other per-
son could confer this authority, or obligate the professor of law
[i.e., the mufti] to do so (against his wishes)."
39
To be sure, such an arrangement would spawn sizeable disa-
legal opinion is not binding on any individual, unless it reflects the view of a Unani-
mous Consensus. Thus, the man in question could petition an opinion from another
jurist that would authorize him to act in opposition to the first opinion. Second, there
are instances where a legal opinion may be acted upon only under State supervision, as,
e.g., where it deals with criminal sanctions, or requires investigation as a prerequisite to
the determination of facts, or where there is a strong, outstanding disagreement within
the legal community accompanied by a conflict between the priority to be given to a
"right of man" (i.e., a private right) versus a "right of God" (a public interest). See, e.g.,
JACKSON, supra note 35, at 220-21.
38. The notion of female jurists, especially in the pre-modern East, may strike
some as odd, if not propagandistic. Note, however, to take just one example, that in the
introduction to the authoritative manual on Hanafi law by the famous 'All' al-Din al-
Klsdni (587/11-), it is stated that the author's wife, Fdtimah, was a respected jurist
whose name, along with that of her father (and later her husband) was appended to
many a legal opinion. Indeed, it is stated that "[s]he used to transmit the doctrine of
the school with great acumen. And sometimes when her husband, al-IsAnf, would set
out to issue a legal opinion (Jatwa) she would intervene to correct his opinion and
point out what was wrong with it, at which time he would yield to her opinion." See 'ALA'
AL-DfN ABO BAKR (b. Mas'did al-Kdsani), BADA'I' AL-sANA'I' F4 TARTB AL-SHARA'I' 1:75 (A.
M. Mu'awwad & A. A. 'Abd al-Mawjfid eds., Beirut: DAr al-Kutub al-'Ilmiyah, 1997)
(1318) (translation by author).
39. See George Makdisi, La Corporation a l'6poque classique de l'Islam, in THE ISLAMIC
WORLD, FROM CLASSICAL TO MODERN TIMES: ESSAYS IN HONOR OF BERNARD LEWIS 193,
206 (C.E. Bosworth et al. eds., 1989) (translation by author). A word should be said
here about judges, who, unlike jurists, were exclusively appointed by the Muslim State.
The judge's ruling, however, while binding, applied only to the case under review and did
not affect the status of legal opinions, or fatwas, issued by the jurists or upheld by the
schools of law. Islamic law, in other words, was emphatically not a system ofjudge-made
law.
168 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 30:158
greement. A glimpse of just how much might be gleaned from
the following. In 1982, a Saudi press issued an edition of a classi-
cal work, Kitab al-Ijmd' (The Book of Unanimous Consensus) by the
fourth/tenth century jurist, Ibn al-Mundhir (d. 318/930). This
book catalogued all the issues on which the jurists of the day had
reached unanimous consensus. The entire printed edition came
out to be just 130 pages of large print. Meanwhile, a contempo-
rary of Ibn al-Mundhir, the famous al-Tabar (d. 310/923), com-
posed a work entitled Kitdb ikhtildf al-fuqahd' (The Book of Disagree-
ment Among the Jurists), which catalogued all the issues on which
the jurists had disagreed. This work fell into some 3,000 pages
in manuscript!
While the Muslim State clearly remained committed to the
rule of law, it did not look upon this kind of legal diversity as a
threat to or violation thereof. Nor did the fact that legal deriva-
tion remained outside its jurisdiction undermine this commit-
ment.
4
" We should be careful, of course, not to overstate matters
here. The jurists did cede to the State discretionary powers via
which it could supplement sharifah with edicts designed to fill in
gaps or accommodate the quasi-legal (e.g., licensing of medical
doctors, etc.). These edicts, however, were not the result of any
"legal interpretation" and generally lasted no longer than the
regime that issued them. The madhhab, or school of law, on the
other hand, transcended political regimes and emerged as the
most permanent institution in Islam, continuing all the way
down to modern times.
4 1
Turning to the issue of the State's monopoly on the legiti-
mate use of punitive violence, here too we find Islamic law in
basic agreement. While Muslim jurists recognized that this prin-
ciple was not absolute (thus, e.g., Muslim parents could physi-
cally discipline their children), beyond the bright red boundary
surrounding the family no one but the State had the right to
40. There was, in the formative period of Islamic law, i.e., the second/eighth cen-
tury, a proposal presented to the Caliph by the Secretary of State, Ibn al-Muqaffa', to
codify Islamic law. This proposal was roundly defeated, however, never to reappear
until modern times and the European inspired project of the Ottomans. See SCHACHT,
supra note 20, at 55-56, 92-93; Ann E. Mayer, The Shariah: A Methodology or a Body of
Substantive Rules?, in ISLAMIC LAw AND JURISPRUDENCE, supra note 28, at 177, 179-182.
41. SeeJAcKSON, supra note 35, at 133-41; FRANK E. VOGEL, ISLAMIC LAW AND LEGAL
SYSTEM: STUDIES OF SAUDI ARABIA 169-308 passim (2000) (describing the discretionary
powers of the Muslim State).
LEGAL PLURALISM
impose legal sanctions.
4 2
A standard vindication of this monop-
oly is supplied by the seventh/thirteenth century Egyptian jurist,
Shihdb al-Din al-Qardfl (d. 684/1285). Explaining those in-
stances where a legal opinion (fatwa), even one backed by Unan-
imous Consensus (ijmd), may only be acted upon by the State or
under State supervision, al-Qarafi notes that leaving the imple-
mentation of certain rules to the public will only bring harm to
the latter.
43
He mentions specifically, inter alia, prescribed crim-
inal sanctions (hudi2d) and notes that:
Were the implementation of these rules left to the public and
the common people set out to lash adulterers and amputate
the limbs of thieves, etc., tempers would fly, egos would be
stirred up, the people of character would be incensed, and
chaos and strife would abound. Thus, the religious law set-
fled this matter by delegating (the implementation of) these
rules to the state (wuldt al-umfir). The people surrender to
this arrangement and accept it, willingly or unwillingly, as a
result of which these great liabilities are avoided.
44
Even where the rule in question spoke to civil rather than
criminal matters (e.g. divorce on grounds of a husband's insol-
vency), where an individual's acting on the rule threatened to
upset public order, jurists called upon the State to monopolize
its implementation.
45
In all of this, however, legal diversity was
not deemed a theoretical impediment to the State's monopoly
on the use of violence.
As for the issue of equality, here we find that Islamic law
evinces a principled commitment, but to substantive rather than
formal equality. The difference between these two is summarized
in an exchange related by Professor Stephen L. Carter. In this
exchange, a leading Christian evangelist protests that Muslim in-
mates (in the American correctional system) have no cause to
complain because they have all the rights and privileges that
Christian inmates have. To this Carter responds:
42. See JACKSON, supra note 35, at 218.
43. See id. at 220-21.
44. See SHIH- AL-DfN AL-QARAFt, KITAB AL-IHKAM F1 TAMYiZ AL-FATAWA 'AN AL-AHKkM
WA TASARRUFAT AL-Q.ADi WA AL-IMAm 148 (A. Abdi Ghuddah ed., Aleppo: Maktabat al-
Matbfi'At al-Islamiyah, 1967) (1387) (translation by author). Among the other rules
that require State supervision, al-QarWt1 mentions those that require factual determina-
tion (e.g., whether a husband is actually insolvent and thus unable to support his wife),
distributing the spoils of war, collecting land and poll taxes, and the like. Id. at 146-55.
45. SeeJACKSON, supra note 35, at 220-23.
2006]
170 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 30:158
No doubt they do. But they would prefer to have the rights
they need as Muslims. The right to do every-thing that Chris-
tians are allowed to do is not the same as the right to follow
God in their own way.
46
Rather than a formal equality, where a presumably objective
standard that is assumed to be religiously, culturally, and histori-
cally equidistant from all societal members is uniformly applied,
Islamic law opted, mutatis mutandis, for a substantive "equality of
respect" where the standards to which constituent communities
held themselves were given recognition. This was clearly the
case with regard to the various subdivisions within the Muslim
community, the four schools of law, with all their intramural dif-
ferences, being equally recognized.
47
It also extended, however
(i.e., beyond the perimeters of criminal law, which policed, ceteris
paribus, the greater public and not the private spaces of groups
(e.g., schools, churces) or individuals
4
") to non-Muslims. As I
have established elsewhere, even reputedly puritanical Hanbal-
ites upheld the two-part rule, stipulating that (1) if non-Muslims
did not submit their disputes to Muslim courts, they were to be
left alone, and (2) if they did submit their disputes to Muslim
courts, they were to be judged on the basis of their own law,
49
unless they specifically requested Islamic justice.
5
46. STEPHEN L. CARTER, GOD'S NAME IN VAIN: THE WRONGS AND RIGHTS OF RELIG-
ION IN POLITICS 158 (2000).
47. This was in fact the subject of my book, IsLAMIC LAW AND THE STATE: THE
CONSTITUTIONAL JURISPRUDENCE OF SHI-IAB AL-DiN AL-QARAF1, supra note 35.
48. Even murder that was not the result of "publicly directed" violence, as for ex-
ample what happened at Columbine High, was deemed a civil offense, not a criminal
one. On this point, see Sherman A. Jackson, Domestic Terrorism in the Islamic Legal Tradi-
tion, 91 THE MUSLIM WORLD 293, 294-97 (2001). Similarly, while wine-drinking was
deemed a criminal offense for Muslims (though the Hanafi school allowed the con-
sumption of certain forms of wine, e.g., nabfdh, in non-intoxicating amounts) it was not
so forJews and Christians. In this light, some jurists held the wine of non-Muslims to be
valuable and Muslims who destroyed it to be financially liable. No such liability at-
tached to the wine of other Muslims (with the possible exception of cases where the
latter were Hanafis). On this point, see SHIHAB AL-DIN IBRAHiM (b. 'Abd Alldh Ibn Abi
al-Dam), KITAB AAB A-QkDA' 118, 166-20 (M.A. Ahmad ed., Beirut: Dr al-Kutub al-
'Ilmiyah, 1987) (1407).
49. See Sherman A. Jackson, Shar'ah, Democracy and the Modem Nation State: Some
Reflections on Islam, Popular Rule and Pluralism, 27 FoRDHAM INT'L L.J. 88, 105-06 (2003)
(discussing the Muslim response to the Zoroastrian institution of incestuous "self-mar-
riage").
50. Timur Kuran notes that under the Ottomans, Jewish and Christian litigants
often opted for Islamic law instead of their own legal regimes, even where the Muslim
authorities afforded them the right to be judged according to the latter. See Timur
LEGAL PLURALISM
It is clear, from these depictions, that legal centralism is an
ideological commitment born of a particular historical experience.
Like all ideologies-powerful dogmas and oversimplifications de-
signed to sustain commitment and spawn action-it runs the risk
of taking itself as the self-evolved natural order of things and
losing sight of its historically informed raisons ditre. While legal
centralism may be an effective means of preserving such institu-
tions as the rule of law, the State's monopoly over the legitimate
use of force and equality before the law, it is not clear-certainly
not in purely legal terms-why only specific concretions of these
values should be taken seriously or why legal centralists should
not consider alternative arrangements that might be equally ef-
fective in accommodating their agenda. Indeed, unless legal
pluralism is disqualified on patently non-legal grounds, it is not
clear that it is incompatible with all constructions of legal cen-
tralism.
C. Medieval Romanticism or Pragmatic Modernity
Of course, the medieval realities that informed the classical
Muslim State have longed expired, presumably never to return.
Prior to the onset of the forces that set in motion Francis Fuky-
ama's "End of History," States simply did not see themselves as
monopolizers of law or as homogenizers of society. In the case
of the Muslim State, as the Islamic intellectual historian Schlomo
Goitein points out, "with the exception of some local statutes,
promulgated and abrogated from time to time, the state[s] as
such did not possess any law... ."'1 Law in pre-modern times, in
other words, was invariably of sub-State provenance. And to the
extent that the sub-State terrain was culturally and religiously va-
riegated, so too would law be.
In reality, however, the sub-State terrain of modern Nation-
States is no less culturally or religiously diverse; nor is it devoid
of active reglementary regimes. It is only the Nation-State's legal
centralist underpinnings and the fact that law is now State-spon-
sored that obscures this reality. As Griffiths notes, analyses of
legal pluralism are "almost all written under the sign of unifica-
tion: unification is inevitable, necessary, normal, modern and
Kuran, The Economic Ascent of the Middle East's Religious Minorities: The Role of Islamic Legal
Pluralism, 33 J. LEGAL STUD. 475, 484-88 (2004).
51. 1 SCHLOMO GOITEIN, A MEDITERRANEAN SOCIETY 66 (1967).
2006]
172 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 30:158
good."
52
This is because, from the perspective of legal central-
ism, "[u] niform law is not only dependent upon but also a con-
dition of progress toward modern nationhood.
'5 3
Increasingly,
however, whether we are talking about the Muslim world or the
United States, the homogenizing agenda of legal centralism is
finding itself in increasingly apparent competition with sub- and
non-State reglementary regimes of various forms, origins and de-
grees of authority.
In the Muslim world, the problem begins with the fact that
Islamic law historically precedes and transcends the State. This
means that there is an entire universe of legal rights and obliga-
tions that are authoritative and deeply felt in the hearts and
minds of people yet totally independent of the State. The politi-
cal theory underlying the modern Nation-State is ill-equipped to
deal with this. Consequently, modern Muslim States tend either
to seek to co-opt the religious law or to suppress it. The result is
almost invariably one or another form of Islamic "fundamental-
ism," which at its core has nothing to do with "literalist interpreta-
tions, ""' but is a playing out of the conflict engendered by the
modern State's presumed monopoly over law in the face of large
segments of the population's recognition of other, prior and, in
their view, "superior" sources of law. Given the general perva-
siveness of the logical underpinnings of the Nation-State, both
sides proceed on the basis of the presumed normativeness of 'ju-
ristic monism," i.e., the view that there can be only one law of
the land uniformly applied across the board. On this under-
standing, modern Muslim societies are transformed into verita-
52. Griffiths, supra note 2, at 8.
53. Id.
54. Contrary to the view of some scholars, classical Islam never produced a literal-
ist canon. Even the Zdhirite school (from the word zdhir, "apparent") was not literalistic
but "empiricist," i.e., it emphatically limited the deduction of legal doctrine to formally
recognized sources of the law, excluding all a priori presumptions and speculation. In
terms of legal interpretation, the Zdhirites were actually often more "liberal" than their
counterparts. For example, since they rejected analogical reasoning, they rejected anal-
ogizing from gold and silver to other forms of money. On this basis, they would reject
the entire edifice of laws regarding interest. Indeed, on a strict Zahirite interpretation,
there would be no ban on interest on paper money! Clearly, borrowing the term funda-
mentalism from the experience of late nineteenth and early twentieth century Christi-
anity in the West has bred much ignorance and confusion. See, S.A. Jackson, Literalism,
Empiricism and Induction: Apprehending and Concretizing Islamic Law's Maqdsid al-Sharf'ah
In the Modern World, 2006 MICH. ST. L. REv. (forthcoming); ScHAcrr, supra note 20, at
63-64; see also IGNAZ GOLDZIHER, THE ZAHIRIS: THEIR DoCTRINE AND THEIR HISTORY
(Wolfgang Behn ed. & trans., Leiden, E.J. Brill 1971) (1884).
LEGAL PLURALISM
ble powder-kegs where control over the State is deemed a pre-
requisite to control over the law, and where each party wants to
ensure that if there is only going to be a single law of the land,
that law is their law.
In the United States the situation is not as volatile. The
United States enjoys the advantage of having emerged as a mod-
em Nation-State where the presumption that the State had a mo-
nopoly over law was not borrowed but original. Even European
immigrants who brought with them aspects of their legal heri-
tage recognized that the process of "Americanization" entailed a
degree of forfeiture.
56
This contrasts sharply with the situation
of Egyptians, Syrians or Pakistanis. For Egyptian-ness and Syrian-
ness-both of which connote Islam cum Islamic law-pre-existed
the Egyptian and Syrian states. As later developments, neither of
these States can assume the authority to define these nationali-
ties in the way that the United States could do, at least in the
formative stages of its history, with U.S. identity.
57
As for such
modern creations as Pakistan, which came into existence as a
would-be "Islamic State," those, by definition, connoted regle-
mentary regimes prior to and transcendent of the State.
And yet, the United States is not without its issues in con-
fronting a sub-State terrain that is at least equally (if not more)
culturally, historically and religiously diverse as the societies of
the Muslim world. A good example of how this is reflected in
legal terms would be the present debate over gay marriage.
While the State assumes, on the one hand, the right to regulate
marriage, it recognizes, on the other hand, that marriage is per-
55. I have not been able to keep up with legal debates and constitutional develop-
ments in the new Iraq. To my mind, however, given its history, whether the new consti-
tution is able to embrace and or accommodate some or another form of legal pluralism
will be key to Iraq's success in managing its multi-ethnic, sectarian, religiously pluralistic
society. See, e.g., Mohamed Y. Mattar, Unresolved Questions in the Bill of Rights of the New
Iraqi Constitution: How Will the Clash Between "Human Rights" and "Islamic Law" Be Recon-
ciled in Future Legislative Enactments and Judicial Interpretations, 30 FORDHAM INT'L LJ.
- (2006).
56. See, e.g., NANCY COTr, PUBLIC Vows: A HISTORY OF MARRIAGE AND THE NATION
9-23 (2000). Chapter One, "The Archaeology of American Monogamy," describes how
the process of Americanization entailed the forfeiture of polygamy and converted mo-
nogamy into a signature of U.S. national character. Id.
57. See generally SAMUEL HUNTINGTON, WHO ARE WE? (2004). To be sure, the pro-
cess of establishing U.S. identity is never fully complete and the substance of that iden-
tity is always contested. This is clearly reflected in Professor Huntington's recent book.
Id.
2006] 173
174 FORDHAM INTERNATIONAL LAWJOURNAL [Vol. 30:158
ceived by many (if not most) Americans as a "sacred" cum relig-
ious institution. Moreover, there are well-established religious
groups in the United States, most notably within the Christian
community, that condone homosexual relations and have even
consecrated religious authorities who are openly gay.
58
The pre-
sent effort to pass a Constitutional amendment to ban gay mar-
riage for all religious communities would seem thus to run the risk
both of unduly entangling the government in religion (at least
for that sizeable segment of the population that sees marriage as
a religious institution) and of discriminating against those estab-
lished religions that do not proscribe homosexual relations.
59
In
the end, the government's "juristic monism" invariably privileges
some established religions while penalizing others, an effect that
can ultimately serve neither the government nor the governed.
This brings me to my penultimate point, namely that formal
equality, which is the basis of the one-size-fits-all approach, is
only effective with populations that are more or less substantively
equal. The same law equally applied to peoples who differ his-
torically, socially, religiously, culturally, etc., will often produce
an unequal effect. This is the point of the anthropologist Sally
Moore, who notes that, contrary to the assumption of the legal
centralists, the social space between legislators and individuals is
not a "normative vacuum," but is "full of norms and institutions
of varied provenance,"
6
all of which contribute to the law's ulti-
mate effect. It would seem, thus, that to the extent that govern-
ment wants to sustain its image of being equidistant from the
entire population, these sub-State reglementary norms and insti-
tutions would have to be factored into its legal order.
Of course, the great stumbling block in any discussion of
legal pluralism is the question of modality. Given our commit-
ment to individualism and equality, how are we to accommodate
different laws applying to different people? The shortest answer
58. For example, delegates to the 2003 Episcopal General Convention confirmed
the consecration of Gene Robinson as bishop of New Hampshire. Robinson is openly
gay and was at the time in a long-standing relationship with another man. See Laurie
Goodstein, Openly Gay Man is Made a Bishop, N.Y. TIMES, Nov. 3, 2003, at Al.
59. See, e.g., Toni Lester, Adam and Steve vs. Adam and Eve: Will the New Supreme
Court Grant Gays the Right to Many?, 14 AM. U. J. GENDER Soc. POL'Y & L. 253 (2006)
(arguing that a ban on gay marriage would violate the U.S. Constitution on equal pro-
tection grounds); Richard M. Lombino, II, Gay Marriage: Equality Matters, 14 S. CAL.
REv. L. & WOMEN'S STUD. 3 (2004).
60. Griffiths, supra note 2, at 34.
LEGAL PLURALISM
to this question is that we already do. The laws regulating mo-
tor-vehicle operation or statutory rape treat persons differently
according to their age.
6
" In some states, gay couples qualify for
spousal benefits (e.g., insurance) while (unmarried) heterosex-
ual couples do not.
62
In this particular case, while it can be
known that a couple is of the same sex, it is difficult to prove that
they are even actually gay. At any rate, the point in all of this is
that individuals, even if only for political purposes, remain mem-
bers of groups. And different groups are, willy-nilly, subject to
different laws and legal sanctions. The question, as such, is not
whether a society that values individualism and equality can ac-
commodate legal pluralism but, rather, which groups within that
society will qualify for specific legal recognition.
CONCLUSION
This Essay has sought to suggest that legal pluralism, far
from being a romantic notion from the medieval past, may offer
some very practical alternatives for the culturally, religiously, and
ethnically diverse twenty-first century Nation-State. This is not to
suggest a complete scrapping of the legal centralist posture. It is
simply to suggest (and recognize) that all law does not have to
originate with the State, even as the State maintains its monopoly
as legal executive. To some extent, this is already taking place
and being recognized. As Klaus Guinther points out, all kinds of
sub-State non-governmental organizations (e.g., Amnesty Inter-
national or Human Rights Watch) and "extra-State" interna-
tional organizations (e.g., the World Trade Organization or the
World Bank) have acquired the ability to hold States to legal
norms and standards (e.g., of what is humane or what is protec-
tionist) that are transcendent of any individual State.
6 3
Similarly,
under the influence of U.S. law firms, private arbitration has
been transformed into a veritable "international lex mercatoia"
61. See, e.g., N.Y. Penal Law 130.25-130.35 (McKinney 2001)(differentiating de-
gree of rape by age of actors); N.Y. Veh. & Traf. Law 501 (McKinney 2005) (setting
minimum age for operation of motor vehicle with general Class D license at eighteen
years).
62. See, e.g., Cal. Fain. Code 297-297.5 (West 2005); N.J. Stat. Ann. 26:8A-2-4
(2004) (requiring both persons to be members of same sex or over age sixty-two to be
eligible to register for domestic partnership and receive spousal benefits).
63. See Klaus Gfinther, Legal Pluralism and the Universal Code of Legality: Globalisation
as a Problem of Legal Theory 5 (2003), http://www.law.nyu.edu/clppt/program2003/
readings/gunther.pdf (last visited Oct. 5, 2006).
2006]
FORDHAM INTERNATIONAL LAWJOURNAL
that is largely detached from national legislation and regarding
which "national governments are only needed as bailiffs for the
execution of the court decision.
' 64
In such a context, it would
seem ironic that national governments should grow comfortable
with non-State reglementary regimes that originate 'above' or
outside their jurisdiction, but look upon those sub-State regle-
mentary regimes that exist and or develop within their territorial
boundaries as constituting a mortal threat to the dictates of legal
centralism and the integrity of the Nation-State.
64. See id.
176