In recent months Ashgate have published a number of volumes dealing with various aspects of the interaction between ‘Islam’ and other legal and cultural traditions. Of these books, two, other than that under review, are particularly worthy of note. Both of these volumes have been edited by Mashood Baderin, Professor of Law at the School of Oriental and African Studies, University of London. The first of these books is part of the Ashgate series ‘Library of Essays in International Law’ and entitled International Law and Islamic Law. The second is an edited collection of some of the work of Abdullahi An-Na'im entitled Islam and Human Rights.Footnote 4 Professor An-Na'im is one of the best-known ‘reformist’ commentators writing in the English language on Islamic legal traditions and how they can be or are reconcilable with international human rights standards. The theme which runs through these two books and the third, that is under review, is the engagement between aspects of the various strands of Islamic thought, on the one hand, and, on the other, European and universal legal norms. In the two books edited by Professor Baderin, the engagement is concerned with ‘Islamic legal norms’ and public international law generally or more specifically those aspects of public international law concerned with protecting human dignity. The book under review is concerned with the same engagement but at a somewhat different level and approaches it from a more distinctive perspective, that of a mutual discourse between legal traditions. The perspective of a discourse is of course entirely different from a conflictual one, and recognises the validity of both sides and does not consider one to be inherently superior to the other.
The book is in three main parts. Part One, composed of six chapters, examines the ‘Encounter of Legal Theories’. Part Two, composed of another six chapters, considers ‘Local Experiences’ and Part Three, composed of the final two chapters, is entitled ‘Shari'a and Discourse’. It is the final section of the book which reverts back directly to the dominant theme of the collection, which is also reflected in the title, that of a discourse between traditions.
The six chapters in Part One, address a number of aspects of the ‘encounter’ of legal theories. The encounter is not about ‘Islamic’ theories, on the one hand, and, on the other, Western traditions but about a number of internal and external dynamics. The chapters by Mona Siddiqui and Asma Afsaruddin examine ‘internal’ aspects within the Islamic tradition. Professor Siddiqui's chapter, for example, analyses the issues of logic in classical fiqh (jurisprudence) and the issue of juristic technique in some aspects of classical Islamic legal theory. In many senses the chapter by Asma Afsaruddin is the more interesting one as it examines ‘modernist’ and ‘hard line’ approaches to the same matters and how different outcomes from the same religious source are justified. Later chapters in the same section of the book do start to examine the interaction between Sharia and other values, for example, relations between ‘European legal discourses’ and the ‘Nordic legal context’, on the one hand, and, on the other, Sharia. There is nothing particularly ground breaking in any of these studies; in fact they go over quite well-trodden ground, with the exception of the examination of ‘Nordic legal contexts and Shari'a,’ but overall, for reasons to be explained further below, that makes little difference.
Part Two of the books addresses ‘local experiences’ and examines: the approach of the Swedish District Court to Sharia; legal pluralism and British Muslims; Sharia in Saudi Arabia; gender and religion in the Arab media; and Sharia and the constitutional debate in Egypt, respectively. Although some of these chapters move away from the parameters established by the sub-title of the volume this is where some of the real value of the collection lies. The experiences of certain European States with their Muslim populations has been addressed in the legal literature on numerous occasions; the attitude of some Muslim majority states less often so. Although some parts of the discussion here go over familiar territory, the prism is different. The discussions on Saudi Arabia and Egypt which do add value, without wishing to be invidious, simultaneously highlight a key gripe with the volume. It would have been more useful if both these chapters had brought out more coherently how, notwithstanding the differences, the legislature and courts in Europe or the Middle East face the same dilemmas and issues in dealing with religiously derived rules. Aspects of this are brought out in the final section of the book, Part Three, which is entitled ‘Shari'a and Discourse’ but it would have been welcome if this had been a more dominant and detailed theme throughout the volume as a whole. The chapter in Part Three by Mogens Müller, for example, illustrates how traditions of interpretation within Protestantism and Islam have some parallels. As interesting as the discussion is – herein lies the real crux of my complaint with this volume – the discussions are generally far too cursory. This applies to almost all of the chapters.
The issues addressed merit discussion at length and the prism adopted is a valuable one which should have resulted in more elaborate analysis. Many of the chapters feel a little underdeveloped, which I did find disappointing. Nor am I entirely convinced by the internal coherence of the volume; certain key themes could have been more clearly developed and used to link together more strongly the chapters in parts of the volume. I do feel a lengthier treatment with more case studies would have done greater justice to the issues. Notwithstanding this, I thoroughly enjoyed reading many of the individual chapters. There is far too much out there which is misinformed or adopts either a confrontational or culturally superior perspective. Such prisms achieve little in progressing the dialogue; the perspective of a discourse certainly has attractions and virtues which the others do not. Ashgate should be commended for publishing the volume, alongside the other books mentioned at the start of this review; they have an obvious commitment to publishing works which add to the quality of the literature in this field and that is something which is most welcome.
