Islamic Law and the Liberal Arts

By Mona Oraby

I teach a course called Islamic Constitutionalism at Amherst College. Colleagues at other institutions are often surprised and flattered when I tell them I use their casebooks, International Journal of Constitutional Law articles, and monographs in my teaching. Flattered because, well, it’s always flattering to hear that what we write is read beyond specialist circles. Surprised because teaching Islamic law at an undergraduate-only institution in the United States seems complicated—more complicated perhaps than broaching the same topic with a 3L or a graduate seminar. It is difficult to imagine how readers who lack the requisite language skills can decipher philological texts or how, in the study of modern and contemporary law, non-specialists might grasp the consequences of nineteenth and twentieth century legal pluralism. If historians scoff that lay people know too little history, particularly of the medieval world, those who train legal professionals may raise a related concern. How does one explain to 19-year-olds the compounded normativities, constraints, and possibilities entailed when the Islamic legal tradition and the Western constitutional tradition overlap—not to mention the mechanisms that catalyze this convergence? This is a question about beginning, or where and how beginnings start.

The learning context

Humanistic inquiry in the liberal arts trains undergraduates to think, read, and write critically about questions old and new so they may pursue lives of great service—however they understand that charge. Students are encouraged to address these questions by borrowing generously from tools, methodologies, and archives that in another learning context would seem discipline-specific. The spirit of interdisciplinarity motivates many students to take courses outside their comfort zones. Islamic Constitutionalism is often the first and only class students ever take that engages with the Islamic legal tradition. And prior study of Islam or law has no bearing on how well they do in the course. In fact, some of my most brilliant students hail from majors that seem far from our topic: biology, Black studies, economics, French, and music. Others often double major across the humanities, social sciences, arts, and science and math. Academic achievement across the college curriculum and within their majors means that students become proficient in multiple scholarly languages.

Students in a liberal arts context are eager to challenge received narratives and formulate novel answers. The comingling of disciplinary fluencies within a single class setting and college-wide enriches the learning experience for everyone. This is so at least in part because undergrads are not responsible for shepherding a discipline forward. Students rarely, if ever, speak as biologists, or historians, or economists, or political scientists. While nearly every student who enrolls in my courses is new to the study of law beyond North America or Western Europe and unlikely to be fluent in Arabic, Turkish, Farsi, Urdu, Malay, or Indonesian, their inclination to consider a single problem from more than one perspective lends itself to exactly the kind of comparative work that Islamic Constitutionalism requires. That different states may exhibit similar patterns in constitutional theory and constitutional practice is not as big of a jump, conceptually or practically, to learners who already view our world in a deeply interconnected way.

As specialists know well, the incorporation of references to Islam and Islamic law into modern constitutions is a global phenomenon. Before delving into the modern and contemporary, the course offers a general introduction to how Muslims engaged normative cosmologies prior to the colonial encounter. Students develop some understanding of the figures (like the muftī, qāḍī, and faqīh), relations (as between the muftī and the mustaftī), institutions (like the waqf, maḥkama, and madrasa), and knowledge structures (the madhāhib and their jurisprudence) that come to operate and matter differently during subsequent periods of constitutional development. We then attend to variations in how and why constitutional identity and social difference are addressed across cultural contexts, particularly in Nigeria, Pakistan, Malaysia, and Egypt. The course pairs primary sources available through the Comparative Constitutions Project with touchstone and more recent scholarly literature in comparative constitutional law, Islamic law, anthropology, history, and religious studies. The recent works include monographs by Sarah Eltantawi and Olufemi Vaughan; articles by Kristen Stilt and symposia convened by Jaclyn Neo, Dian Shah, and Andrew Harding; and volumes edited by Aslı Bâli and Hannah Lerner, Anver Emon and Rumee Ahmed, Rainer Grote and Tilmann Röder, and Haider Hamoudi and Mark Cammack.

The work of a scholar-teacher

Liberal arts faculty become polyglots the more we meld research and teaching. By this I mean we build capacity for analogical reasoning (i.e. to understand similarities and differences within and across systems) and how we communicate analogies (i.e. to specialists in our field and non-specialists in our classrooms). It’s hard to say whether students take after their professors or professors take after their students in this way (i.e. whether the fluencies they practice are relayed by us to them, or the reverse). My sense is that teaching and learning operate in a dialectic way in the liberal arts.

I have come to see that translation is what effective faculty at liberal arts colleges do daily. When “Translate your research to a broader audience!” headlines workshops at national conferences, webinars on public scholarship, and press marketing questionnaires, I think about conversations I have with peers and students at Amherst. The “broader audience” names my immediate context. A professor at a liberal arts college is not uncommonly the only subject expert among a college-wide faculty that fits more or less in one room. We are prompted by colleagues to talk about our research during many ritual convenings. These prompts pose as many challenges and opportunities as those coming from students, especially for scholars who conduct research in a language or languages other than English, focus on geographies other than North America or Western Europe, and specialize in the study of the ancient or medieval world. Here is a place where you can’t talk the talk of accessibility without also running, swimming, climbing, jumping, and even jousting your way there.

When pedagogues prioritize skill-development over content, as I do, what matters is not whether students can memorize an exact sequence of constitutional borrowing or migration, but the critical tools they develop to understand why and how this phenomenon occurs across jurisdictions. The multiscalar skillset students build in Islamic Constitutionalism is a lot like learning a grammar and a dialect and practicing both daily: the general infrastructure is helpful primarily as a guide, not as a literalist measure of language use. Comparing the constitutional experiences of seemingly disparate societies without equating those experiences with legal doctrine should be understood in this sense too. Comparative, humanistic inquiry is best approached somewhere along the continuum between stargazing and astronomy, between a curiosity and a science. Tools like binoculars or telescopes equipped with adjustable magnification extend our vision. They are more adept than our naked eye at perceiving nuance. Critical engagement with primary sources and secondary literature trains students in a similar mode: to see the big picture up close. Students become attentive to how time, place, and culture matter to that picture. And they learn that the picture often looks different depending on where they stand.

My goal in a course that exposes students to languages, concepts, histories, and practices mostly unfamiliar to them remains focused on skill-building rather than content mastery. It is also to find ways to invite students into a conversation that may seem hyperspecialized by showing them they in fact have a lot to contribute—by virtue of their knowledge, for example, of federalism and the separation of powers doctrine. Students come to see that the analytic perspective we maintain in relation to our object of study affects our understanding of that object. A scholar who understands law as distinct from politics, or a scholar who understands law as politics by other means, or a scholar who understands law as a cultural practice of ritual and mythmaking will reach different conclusions about constitutionalism. As students practice seeing from different scholarly perspectives, they look for patterns and variations across time and context in legal questions, arguments, and decisions. We consider continuously what scholarly debates on the constitutional experiences of Muslim societies, or societies with sizeable Muslim populations, contribute to our general understanding of modern law and constitutions.

What students expect from professors

Undergrads, like students in professional school, may have interests in the legal profession (a fair number let slip the occasional reference to the judge or attorney in the family). But a liberal arts education does not assume undergrads are lawyers in the making. Legal studies at Amherst is not a pre-law concentration. An exercise of legal reasoning in my classes might test competence in applying specific rules and, at the same time invite students to consider substantively the narratives that rule application generates. College students share with graduate and professional school students interests in specialist knowledge but have different expectations for how that knowledge is communicated. Everyone likes a charismatic speaker. Yet undergrads have far less patience, and often rightly so, for academic jargon. And undergrads have different ideas than, say, a dissertator or a 2L about what learning is for and what learning entails, including what role they should have in the learning process. Undergrads continuously test professors’ ability to not only convey specialist knowledge in non-specialist idioms, but also communicate iteratively why and how this knowledge matters. Undergrads hold their professors accountable for much more than a first day of class that scintillates. When they “shop” for classes, they’re on the hunt for a transformative learning experience.

We reach the end and return to the beginning.

I asked: How does one explain to 19-year-olds the compounded normativities, constraints, and possibilities entailed when the Islamic legal tradition and the Western constitutional tradition overlap—not to mention the mechanisms that catalyze this convergence? This question names a robust and important scholarship. But it is not a question that motivates my students. It names a challenge (content transfer) and a target audience (undergraduates) that are hardly related in this way. It prioritizes information over skill. When we think of the translation work we do or might do in the college classroom, or Zoom room, we might well start with a different question for the question that names our work.

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