Thinking about Islamic legal traditions in multicultural contexts

• Published in: Griffith law review Vol. 32; no. 2; pp. 215 - 235
• Main Author: Blanch, Samuel D.
• Format: Journal Article
• Language: English
• Published: Routledge 03-04-2023
• Subjects: Islamic law; Legal pluralism; Legal polycentricity; Multiculturalism; Rule of law; Sharia; Shia Islam; Shiites; Socio-legal methodology; Sociological jurisprudence; IRAN; AUSTRALIA
• ISSN: 1038-3441; 1839-4205
• DOI: 10.1080/10383441.2023.2243776

Faced by the apparent difference between legal traditions, how should scholars and policy makers assess their compatibility or incompatibility? What criteria should be used to adjudge the commensurability, or even the elements of incongruity, between traditions that have developed in different cultural, social and economic circumstances? This article argues for a shift from the way that much of the scholarship on Islamic legal traditions in Western polities pursues these questions. First, scholars assess Islamic legal traditions by explicitly or implicitly assessing their compliance with a contingent Western rendition of the rule of law. Second, comparisons tend to focus on a Western legal theoretical priority of the 'rule' itself, whereby conceptualisations of law are parsed out using an analytical infrastructure particular to the contingent history of the nation state. Such approaches may usefully assess migrant traditions' political compatibility with a benevolent or hegemonic Western legal regime. Indeed, they may be defended philosophically on the basis of 'difference blind' legal arrangements or some kind of minimal secular baseline of governance. However, these approaches are insufficient for addressing the prior question of commensurability. Based on ethnographic data from the Shia Muslim tradition of legal training, I offer a brief account of two 'repertoires of justification' standing askance from this anyhow contingent rendition of Western law. This account serves as a counterpoint to rule based approaches, demonstrating why commensurability should be assessed through an attentiveness to the alternative logics of other legal traditions.