Commentary :: Let’s Lose Lawyers – Afterthoughts

Two points remain to be made at the end of this series, arising from a reaction to, and an interaction of relevance to, the previous blog posts.

First, an excellent graduate student at Istanbul Şehir University (Ali Rıza Işın), who is as far as one gets from being a naïve individual, decided to feign naiveté and ask the following question in reaction to the posts: Do you have a problem with lawyers? He wanted to hear me explain or defend the ruminations that led to the writing of these four blog posts.

My response to this one is that two main thoughts hovered over my head as I wrote these entries. One is that I do dislike some lawyers. The second is that I also want people, clients of those lawyers, to take responsibility for their moral and legal commitments and refrain from outsourcing this responsibility to lawyers. The ideal representative or agent in Islamic law, as I explained in the blog-series, is one who cannot exceed the needs and means of the person they represent (For example, no excess of post hoc rationalization, familiar now in government cases such as New York v. Department of Commerce [1] on the citizenship question on the short, now only, form of the decennial census.).[2] The quality this representative possesses, being simply a representative or an agent of a principal, pervades all applications of cases of explicit-cum-prior representation (wakāla) and emergency representation (faāla). In the case of explicit appointment or wakāla, spouses, business-partners, neighbors, and wards—human beings who would in other circumstances be adversaries of those they represent in this instance—represent spouses, neighbors, business-partners or masters, and they are supposed to limit their work to explaining and fulfilling the aim of those they represent (see Posts 2 and 3). In addressing the representation of the absent (faāla), Muslim jurists needed to add the condition of ‘subsequent approval’ by the principal for any act on behalf of an absent principal to have the force of applicability, or being nāfidh (Post 3).

This was the first point. Second comes a discussion of the relevance of Roman law to the question of the value and authority of pre-Muhammadan laws (shar‘ man qablanā) in Islam. The University of Chicago’s Ahmad El Shamsy made a short presentation on this topic at Istanbul University on Thursday, October 17, 2019, where he discussed cases of possible influence on Muslim jurists arising from Talmudic laws. Jewish law is, indeed, the prime example of shar‘ man qablanā. But what about the Roman laws that I briefly indicated in my posts? These (Roman laws), we should note, are Christian only by virtue of Justinian’s claim to be a Christian emperor, who had jurists and government employees eclectically document and organize laws that are ultimately the views of pagan jurists and executives. Justinian then gave these the force of law within a Christian empire. Can these Roman laws be an instance of shar‘ man qablanā?

Here I would like to limit myself to an observation and a distinction. Two questions are often conflated in this context: a) whether Muslims are expected to lend any authority to pre-Muhammadan laws post-Muhammad, and b) whether Muslim jurists, for the joy of debating, or to solve actual problems, or unbeknownst to them, consumed ideational products that had emanated from any jurisprudence prior to Muhammad’s prophecy. On the former, theoretical jurisprudence (uṣūl al-fiqh) has a lot to say. It is not an unreasonable reading of these uṣūl al-fiqh sources by a modern Muslim, scholar or not, to say that a religious obligation to follow pre-Muhammadan laws, which are laden with disagreement and diversity, is not a very coherent position. On the latter, modern historians need to be clear what historical evidence they are willing to accept and toward what assertion. (I don’t elevate my status to being one of these professional historians, to be clear.) Until comprehensive legal history scholarship on this matter is available, I am inclined to think that early Muslim rulers and jurists didn’t have the phobia some modern Muslims have of either Talmudic or Roman legal material, and these early jurists and rulers may have, again knowingly or unknowingly, traded in partial or complete versions of ancient jurists’ discussions. On both counts, whether we have any binding shar‘ man qablanā and whether pre-Muhammadan jurisprudence showed up in medieval Islamic legal literature and in what form, the Talmud and the Digest are in the same position.


Notes to Afterthoughts:

[1] No. 18-966, 588 U.S. __ (2019). See also Department of Commerce v. New York, Oyez, (last visited Oct 25, 2019).

[2] Mandated by Section 2 of Article 1 of the US Constitution. The government needed to justify adding citizenship questions to the short and now only form for the census, sure to reduce cooperation with census agents and lead to possible undercounting of the residing population. The citizenship questions, of course, are not the only intrusive and problematic questions on census forms. (This fact gives the government, in my mind, its best argument in the case.)  The relevance of this to my bone of contention with some types of lawyering is that government lawyers seemed to inhabit a distinct moral universe from the Executive Branch they represent. That is, their post hoc rationalization makes the positions they defend something other than what they are. Government cases are only an example of this phenomenon.Other cases of lawyers representing private entities can be just as starkly indicative of it.

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