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Abstract:
Though it is advertised and promoted as the bulwark of an alternative economic system based on populist Muslim notions of social justice and fairness, Islamic finance as a practice has failed to meet these objectives. The causes of that failure and the question of whether alternative approaches are possible are the subject of this Article.

The failure of Islamic finance to provide that which it promotes is the direct consequence of the application of an Islamic logic driven interpretive system through which rules are derived, which its adherents claim was formalized and systematized by the early jurist Muhammad Ibn Idris Al-Shafi'i. The system bears remarkable resemblance to the jurisprudential theories of Christopher Columbus Langdell in that particular cases (the reports of Muhammad, or hadith) are selected and then expanded into fundamental principles, or at least fundamental rules, through a doctrine known as qiyas, or analogical reasoning. The result is a financial system characterized by an incoherent web of rules, convenient and specific blindness respecting those rules in particular contexts, and deceptive and obfuscatory measures intended to lend the entire affair a patina of legitimacy as Islamic. Social justice and fairness are not significant components of the system.

A principled alternative interpretive system, however, does seem possible so long as it remains within particular parameters, among them faithful adherence to Qur'anic verse, substantial respect for the hadith and sufficient systematization and methodological rigor to avoid what some Islamic jurists call subjectivity, or lack of interpretive control. Specifically, the Article engages and expands upon the ideas of Abdul Razzaq Sanhuri and Muhammad Baqir al-Sadr as potential avenues for reform that lie within these parameters. For the full text of the Article, please see 40 Cornell International Law Review 89 (2007).

Islamic finance, Islamic banks, Langdellianism

Abstract:
Despite its currently conservative character, the modern practice of Islamic finance lies on a bedrock of social, cultural and economic revolution. Examination of these revolutionary origins and their attendant jurisprudential implications reveal much about the schizophrenia plaguing Islamic finance today, of a largely formalist practice repeating the functional aims of the early revolutionaries and falsely understood by substantial portions of the wider Muslim community to be achieving such aims. Though the revolution has not come to pass, some of the comparatively radical functional approaches conceived in the context of the anticipated upheaval, and in particular those of the Iraqi Shi'i jurist Muhammad Baqir al-Sadr, deserve reconsideration and refinement as a means through which to reformulate the entire practice of Islamic finance in a manner that realizes more completely the aspirations of the broader Muslim community in its call for uniquely Islamic forms of human association in Muslim societies.

Sadr's revolutionary goals are very much consistent with the rhetoric that proponents of Islamic finance and economics use to justify their practice. Yet Sadr, unlike his contemporaries, developed a functional theory of jurisprudence that relied on particular, acknowledged ideological understandings of foundational text that was intended precisely to achieve the articulated goals. Moreover, Sadr relied on a loose network of Shi'i jurists, largely based in Najaf, Iraq, known as the marja'iyya, to provide a more objective form of legitimacy to his ideas. Under Shi'i doctrine, the marja'iyya is responsible under Shi'i doctrine for deriving the rules of the shari'a. To Sadr, the marja'iyya as an institution could establish legitimate, neutral and definable bounds to interpretation that distinguish it from purely individualized, subjective political argument. These parameters would undoubtedly reflect ever changing ideological and ethical understandings of the foundational texts of Revelation. Nevertheless, within that framework, objective, disciplining rules would emerge to constrain individualized subjectivity on the part of any single jurist engaged in the process of interpretation.

Some of the particularities of Sadr's economic and jurisprudential philosophy are grounded in his Shi'i context, but the broader lesson to be learned continues to resonate. While the dreams of economic revolution may have long faded, the absolute necessity of a jurisprudential revolution has not. Sadr's idea of a transformed and transforming jurisprudence, bounded by objective and neutral rules on interpretive process, imposed through the consensus of an interpretive community responsible for redefining the foundational texts from time to time, is instrumental to the development of a sensible and functional Islamic system based entirely in Islamic doctrine and responsive to the needs of the community.

Islamic Finance, Islamic Jurisprudence, Sadr, functionalism, formalism

Abstract:
The central flaw in the current approach to shari'a in the American legal academy is the reliance on the false assumption that contemporary Islamic rules are derived from classical doctrine. This has led both admirers and detractors of the manner in which shari'a is studied to focus their energies on obsolete medieval rules that bear no relationship to the manner in which modern Muslims approach shari'a. The reality is that given the structural pluralism of the rules of the classical era, there is no sensible way that modern rules could be derived from classical doctrine, either in letter or in spirit, and all efforts to do so have largely failed. As with all historical approaches to the law, the past becomes no more than an invention of the present, a means to validate an approach rather than any true reflection of the practices and norms of a previous era. Thus, modern Islamic rules are not a resurrection of classical era rules, but rather are largely the product of mediation among competing influences in Muslim society. Within and even beyond Islamic finance, the two major influences are, on the one hand, resistance, clothed in Islamic rhetoric, against the dominant global economic and political order in order to create a separate Muslim sphere within which the Muslim polity may operate, and on the other, the need to engage the broader global order, commercially and politically, in order to restore some level of political and economic power to the Muslim world. A proper study of influences of this sort that have led large numbers of Muslims to adopt particular shari'a positions on economics, finance, war and numerous other realms is absolutely vital in the post 9/11 era in order to understand and engage substantial, important segments of the Muslim community in their call for a reinvigoration of the shari'a.

Legal Realism, Islamic Law, Islamic Finance, Islam, Islamic Jurisprudence

Abstract:
Despite its explosive growth over the past several decades, Islamic finance continues to have trouble attracting large numbers of otherwise pious Muslims as potential investors. The underlying reason for this is that the means that the practice employs to circumvent some of the central Muslim bans relating to finance (most notably, the ban on interest) are entirely formal in their structure and are equivalent to conventional structures both legally and economically. However, the practice purports to serve functional ends; namely, through offering Muslims alternative means of finance that are intended to further Islamic ideals of fairness and social justice. This has resulted in schizophrenia within Islamic finance, with proponents and practitioners creating formalisms to comply with Shari'a while continuing to insist that Islamic finance has a functional purpose that cannot sensibly be ascribed to it given its current structure. Either Islamic finance needs to describe itself as nothing more or less than the mere conformity with doctrine in a manner that does not serve any functional purpose at all, or, given the interest of the Muslim community in social justice in economic affairs, the practice needs to reinvent itself, focusing less on mimicking conventional alternatives and more on achieving at least to some degree the ends of social justice and fairness it endlessly promotes.

Islamic Law, Islamic Finance, Jurisprudence, Formalism, Functionalism

Abstract:
Professor Feldman has provided in his latest book, The Fall and Rise of the Islamic State, a superficially positive account of Islamic history. He argues that the shari'a, the vast body of rules and norms developed by jurists on the basis of Muslim foundational text, operated in a manner in the medieval world that both legitimized and constrained the political authority, the Caliphate. He further maintains that the Islamist call for shari'a is to restore balance among competing institutions within the state and reinstitute the medieval rule of law in a modern context.

Despite the apparent sympathy, the work is reminiscent of the type of material that Edward Said so devastatingly critiqued in his seminal study, Orientalism, in which Said argued that in studying the East, the West could do little more than project its own reductive, exoticizing vision of an inferior East. Three Orientalist themes can readily be gleaned from Professor Feldman's book. First, the Muslim East is a monolith, and a single narrative can accurately encapsulate it relatively well. Second, the Muslim East is exotic, incapable of rule of law on more secular terms, necessarily turning to a world of caliphs and medieval jurists to develop a template on which to build rule of law themes. Finally, the Muslim East is obsessed with and nostalgic for its past. Islamists seek nothing more than the resurrection of classical glories in a modern context, the balance of modernity seems to have little affected their vision.

This review will reveal the manner in which these three Orientalist thematic constructions of the Muslim East are distorting in a manner that makes the Muslim polities unrecognizable to the Muslims who actually inhabit them.

shari'a, rule of law, Orientalism, Islamic law, Islam, Muslim, Iraq, Pakistan, Sudan, Turkey

Abstract:
There existed a substantial divergence between the Coalition Provisional Authority, the U.S. and U.K. run entity responsible for governing Iraq after the fall of the Saddam Hussein regime, and the Iraqi body politic over the most fundamental assumptions and biases underlying political and economic forms of human association. This made effective governance by the CPA an impossible proposition. The disparate assumptions and biases in question related to the relationship of state authority and law to alternative religious and culturally based sources of authority. Specifically, the dominant Iraqi assumption is that religious institutions of authority, and in particular, the powerful Shi'i religious institution known as the marja'iyya, are not political, and that therefore matters that should be governed by religious authority are to be administered largely by elements operating beyond state control. Any prescriptive approach to legal change in Iraq requires an understanding of this central fact.

The Article attempts to demonstrate this thesis with reference to a CPA order concerning money laundering whose terms the author participated in negotiating. In this example, the Iraqi presuppositions and biases manifested themselves in objections to CPA proposals regarding preferred modalities of regulation and enforcement, with regulatory exemptions sought for particular commercial actors over whom it was assumed that alternative, non state based forms of authority were more appropriate. The Article proposes a solution to this problem through a paradigm shift in the understanding of certain religious prohibitions on commercial activity, which could lead to a more salutary regulatory regime that harmonizes both state and religious forms of authority.

Islamic Law, Iraq, CPA, Iraqi Law, Shi'ism, Legal Order

Abstract:
There is a crisis in our law schools in the study of Islamic law and the law of the Muslim polities. The current approaches either focus exclusively on national codes to the derogation of other vitally important influences on the legal order, most importantly the body of norms and rules derived from Islamic foundational texts known as the shari'a, or they regard as secondary, and at times irrelevant, the actual legal order of the societies in favor of an academic construction of the theories of medieval Muslim jurists. Neither of these approaches reflects with a necessary degree of accuracy the actual form of legal order in any Muslim society. Adopting a legal pluralist model, this Article relays the actual workings of commercial order in two industries in Shi'i Iraq in order to demonstrate that in understanding the operation of law, and in particular commercial law, in at least parts of the modern Muslim world, both the ever present reality of the national law and contemporary manifestations of the shari'a need to be taken into account.

Iraq, Iraqi commercial law, Iraqi commerce, Islamic Law, Islamic commerce, Islamic finance

Abstract:
This Article details my experience introducing clinical legal education into three Iraqi law schools. I highlight some of the cultural, legal and logistical obstacles that existed, and the means my colleagues and I used to circumvent them. By and large we considered our project at least modestly successful and certainly garnered the interest of many faculty and nearly all students who participated. Nevertheless, the extent of our success depended largely on the cooperation of the faculty and administration at the law schools with which we worked, and we were able to achieve the most at those institutions where cooperation was highest. Unfortunately, however, our project was limited necessarily in both scope and duration, and further efforts must be undertaken in order for experiential legal education to gain a firmer foothold in Iraq.

Clinical Legal Education, Legal Education, Iraq, Comparative Law, Iraqi Law Schools