German Judge and Legal Orientalism (originally posted March 29, 2007)

I originally posted this on March 29, 2007 on eteraz.org, and it was subsequently re-posted on progressiveislam.org.  Both sites are no longer operational, so I thought I would repost on shanfaraa.com for those who might find it of interest.

The Friday New York Times reported that a German judge denied a Moroccan woman’s request for an expedited divorce from her Moroccan husband – despite the apparently undisputed evidence that the husband had repeatedly abused her – on the grounds that such conduct is “common” in Morocco and that the “Koran . . . sanctions such physical abuse.”

While the condemnations of this decision have been swift, some of the criticism has been for the wrong reasons.  Of course, there is the pious outrage of the German politician Ronald Pofalla, general secretary of the Christian Democratic Union, who somewhat hyperbolically took the verdict as (further?) evidence that Islam threatens the German body politic.  The New York Times quoted this far-sighted politician as saying “When the Koran is put above the German Constitution, I can only say, ‘Good night, Germany.’”

Not much has been made of the utter casualness with which this judge could make gross generalizations about Moroccans, the Quran and, implicitly, Islamic law.  Apparently, she could make these factual conclusions without the assistance of any experts, whether anthropologists with some knowledge of Moroccan society or scholars of Islamic law, a large number of which reside in Germany.  I had previously posted a defense of Edward Said’s Orientalism on December 6, 2007 defending his overall thesis – especially in light of the circumstances in which it was originally published – but decisions such as this in Germany confirm, sadly, the continuing relevance of Orientalism’s basic hypothesis: Power relations are constitutive of representation, and that Westerners – by virtue of their superior power – are able to “represent” the Other – in this case the Islamic/Arab other – and render it silent, unable to speak for itself.

The learned judge in this case – had she consulted any expert in Maliki law, the school of Islamic law that forms the basis of Moroccan family law – would have learned that according to Maliki doctrine going back to at least the 8th century of the common era, abuse constitutes grounds for a judicial divorce.  Indeed, Maliki jurists went one step further and even recognized the right of the abused wife in this case to recover for her injuries from her abusive spouse.

This does not mean that Moroccan society has been successful in the aspirations set out in its legal system regarding spousal abuse.  I am not aware of any jurisdiction in the world that has.  Nevertheless, the failure of Moroccans to live up to their aspirations does not justify a judge indulging an assumption that spouse abuse is a Moroccan norm.

That orientalism should continue to flourish in the legal system, however, is profoundly disturbing to me, both on a personal level in terms of my commitments to contributing to the development of Islamic law so that it can play a positive role as constituent element within the global legal system, and on a professional level by evidencing the utter failure of the judge to take the legal principle of comity — a doctrine that lay at the heart of this decision and remains an important and legitimate concept within private international law — seriously when it comes to issues dealing with Islamic law.  (In Germany, the choice of law rule provides that the law of the jurisdiction where the marriage took place – in this case Morocco – applies to the relationship, not the law of the jurisdiction.  Although this principle was not technically relevant to the disposition of this case, it appears to have colored the judge’s approach to the dispute.)

Unfortunately, this cavalier attitude toward Islamic law by courts is not an isolated case.  There have been several commercial law cases in the United States involving issues of Islamic law in which judges, pursuant to the doctrine of comity, have been called upon to construe provisions of Islamic commercial law, but instead of discharging this task with objectivity, they have allowed exotic stereotypes of the “otherness” of Islamic law lead them to reach some rather astonishing results.

An excellent example of the continued relevance of legal orientalism among at least some American judges is the case of National Group for Communications and Computers Ltd. v. Lucent Technologies International Inc., 331 F.Supp.2d 290.  In this case, the judge concluded that the contractual doctrine in Islamic law that renders contracts with gharar – uncertainty or risk – unenforceable precluded the plaintiff from recovering the going concern value of an enterprise that was forced to liquidate as a result of the defendant’s breach of contract.  Accordingly, the court concluded that the plaintiff could recover only the book value of the liquidated firm’s assets.

I do not want to underestimate the difficulty an American judge may have in construing a doctrine such as gharar in a contemporary commercial setting.  To my knowledge, there are no modern authoritative treatises of Islamic law as there was in the pre-modern era, and for that reason, any application of Islamic law to a current dispute inevitably requires a judge to engage in a certain amount of hypothetical reasoning, always a difficult task in even the best circumstances.  I am critical, however, of the judge’s premises regarding the radical otherness of Islamic legal principles, assumptions that obviously colored the judge’s determination of to apply the doctrine of gharar to the dispute.  As a colleague of mine who brought this case to my attention pointed out astutely, the judge, having concluded that Islamic law is “fundamentally different from that of the United States,” id. at 294, obviously decided that the “right” result in this case must be the “wrong” result in the US, as though Islamic law and US law exist in alternate universes, with Islamic law representing all the alternatives rejected by US law.

Of course, the doctrine of gharar while it may be legitimately criticized as being overly formalistic and therefore obsolete in the modern context (at least in many cases), is not radically “other” at all.  In fact, the common law of contracts shares with classical Islamic law the refusal to enforce contracts when there is uncertainty as to material terms of the contract, especially price.  The problem in this case was that there was no uncertainty in price: a third party had purchased 25% of the liquidated firm’s equity prior to the breach, thereby giving a precise, bargained for price term for the firm.

The court rejected this method for calculating the plaintiff’s damages by giving the doctrine of gharar unprecedented scope: according to the court’s reasoning, any bargain involving consideration whose value is speculative is unenforceable in Islamic law, even in circumstances where the parties themselves have settled on a fixed price.  Thus, the court accepted that a contract for the purchase of shares in a corporation could not be enforced in Saudi Arabia, even when the contract fixes the purchase price. According to the classical Islamic law of contracts, however, so long as the consideration is fixed and known, there is no gharar, although there may be disappointment if the deal sours.  For that reason, there is no objection to the sale of a plantation, even though the law prohibited an owner of a fruit tree from selling the fruit of her tree prior to the time it had become edible.  If, on the other hand, the parties wish to enter into a contract with a contingent pay-off structure, e.g. the sale of a company for a price to be determined in whole or in part by the firm’s future earnings post-sale, as in the case of a partial earn-out, for example, then the doctrine of gharar would be relevant, but even in this case, it would not be dispositive.  Because gharar was considered to be relative, only contracts with material uncertainty were unenforceable on that score.  In any case, the doctrine has absolutely nothing to do with the fact that only God knows the future, as contracts for future delivery of goods – so long as the price, quality and delivery conditions are clear – are absolutely enforceable, even though there is uncertainty as to the ability of the obligor to perform her obligation in the future.  Accordingly, the only uncertainty that Islamic law concerns itself with is uncertainty in the terms of the contract, not the actual value of the consideration.

The court, however, is not disturbed in the least by the apparently absurd result it attributes to Islamic law: after all, Islamic law is different.  Moreover, the parties to this suit were “sophisticated business enterprises well-versed in the . . . doctrines of Islamic law.  They chose not to include any prophylactic choice of law clause in this case.  The parties, therefore, are subject to the full application of Shari’a, however uncompromising that application may be.”  Id. at 296.  In effect, the court seems to be saying to the plaintiffs that you deserve this result for not opting out of that insane alternative legal universe called Islamic law.

Going back to the doctrine of comity and legal orientalism, comity ought to be the ideal antidote for legal orientalism.  Comity is grounded in the notion that jurisdictions ought to give effect to the law of other jurisdictions when the interests of that other jurisdiction predominate over the interests of the tribunal’s jurisdiction.  In short, it is a principle of neighborliness.  For comity to work, however, the tribunal applying foreign law must treat the law of the foreign jurisdiction with a spirit of respect, certainly not one of condescension.  In fact, judges, when applying the doctrine of comity, are required explicitly to engage in an act of empathy with the laws of the other legal system by taking on, in effect, the role of a judge within that other legal system.  Federal courts do this everyday when they exercise diversity jurisdiction in the United States.

Finally, comity assumes that the law (especially transnational law) is cooperative project, and that it can be improved when jurisdictions cooperate in a spirit of mutual respect by applying each other’s laws in good faith in suitable circumstances.  This was essentially the method used by the greatest Arab jurist of the 20th century – ‘Abdalrazzaq al-Sanhuri – in drafting first the Egyptian Civil Code and then the civil codes of Iraq, Kuwait and other Arab jurisdictions.  For Sanhuri, comparative law was critical in his drive to modernize Islamic law.  Not only was comparative law grist for his legal reform mill, so to speak, but he invited all scholars of law to participate in his reform project, for he did not conceive of Islamic law as a sectarian project at all, going so far as to state that any legal principle from whatever source may be deemed to be a legitimate part of Islamic law so long as it does not contradict one of its fundamental principles.  My colleague Mahmoud el-Gamal has an entry on his blog discussing Sanhuri’s method of law reform and the extent to which he deemed it a cooperative project.

I hope that courts in the future, when they are called on to apply Islamic law, to do so in the cooperative spirit urged by Sanhuri rather than in a spirit of condescension and stereotype.  In this way, they will contribute to the revitalization of Islamic law and, at the same time, help reduce the tension that feeds into a “war of civilizations” paradigm.