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Jurisprudence: East vs. West or East and West?

In Arts & Letters, Communication, E.M. Forster, Eastern Civilizaton, Islamic Law, Jurisprudence, Legal Education & Pedagogy, Literary Theory & Criticism, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Writing on December 29, 2010 at 6:53 pm

Allen Mendenhall

Today in the Malaysia Star, Shad Saleem Faruqi published “In law, West is not really best,” an article arguing that the fundamental paradigms of legal pedagogy in Malaysia remain Western.  Faruqi laments this fact and declares that despite years of experimentation, legal education “today is as much a colonial construct as it was during the days of the raj.”  He continues,

Yusef Progler points out that most university courses in Asia follow a similar trajectory. We first identify the great white European or American men of each discipline and then drill their theories and practices as if these were universal.

Centuries of enlightenment in Japan, China, India, Persia and the Middle East is totally ignored.

It is as if all things good and wholesome and all great ideas originated in the crucible of Western civilisation and the East was, and is, an intellectual desert.

Jurisprudence: In legal philosophy, for example, a book on American or English legal thought is referred to as “jurisprudence”. In contrast, a book on Islamic, Chinese or Hindu legal thought is described with the prefix “Islamic”, “Chinese” or “Hindu” jurisprudence. The assumption is that Western ideas are universal whereas ours are merely parochial.

A typical course on jurisprudence in a Malaysian university begins with Plato, Aristotle, Locke, Austin, Bentham, Hart, Kelsen, Pound, Weber, Ehrlich, Durkheim, Marx, Olivecrona etc.

Titles written by scholars and thinkers from Asia, South America and Africa are nowhere to be found.

The Mahabharata, the Arthashastra, the Book of Mencius, Analects of Confucius and the treatises of Ibn Khaldun, Ghazali, Ibn Rushd, Mulla Sadra, Jose Rizal, Benoy Kumar Sarkar, Yanagita Kunio and Naquib al-Attas do not appear in our syllabi.

In Austinian fashion, the concept of law is tied to the commands of the political sovereign even though most Asians and Africans feel the pull of religion and custom and regard them as part of the majestic network and seamless web of the law.

I agree with some of Faruqi’s points, as evidenced by my recent paper on Brahman Hindu jurisprudence in E.M. Forster’s A Passage to India.  But I wonder whether Faruqi overstates the uniqueness of Eastern jurisprudence as a general category (surely this phenomenon is more variegated than this catch-all term allows) just as his Western counterparts often overstate the supposed universality of Western jurisprudence.  Is Faruqi’s article, in Derridean terms, a typical case of flipping the privilege of binary oppositions?

Many legal theories have their derivation in other theories, which have their derivation in other theories, which, at the end of the day, are not that distinct from one another.  Nevertheless, Islamic jurisprudence is particularly unique, defying as it does many Western norms and customs.  Sharia law comes to mind, but I’m too ignorant on the subject to write about it.

Someone should explore Faruqi’s claim that “we can point to the fact that the denial of state sovereignty in Islamic jurisprudence preceded Locke’s and Rousseau’s idea of the limits on state sovereignty by hundreds of years.”  If this is true, and I’m assuming, arguendo, that it is, then Western jurisprudents would do well to examine this Islamic jurisprudence with more detail.  I have yet to come across an American jurisprudence textbook, used in law schools, that includes Islamic legal theory.  It is time for the West to become more versed in this field if only to understand what differentiates Western from Eastern legal norms.  Understanding differences is the first step toward action, resolution, and meaning.

Faruqi concludes with this call to action:

There should, therefore, be a concerted effort to re-educate colonised minds; to revisit our syllabi; to substitute imported mental baggage with our own treasury of thoughts.

This indigenisation of our syllabi is not meant to shut out the West but to give to our students a bigger picture of knowledge and to increase their choices.

In the background of pervasive Western intellectual domination, indigenisation would assist a genuine globalisation!

Academic Boards of Faculties, University Senates and accreditation authorities may wish to go beyond form to the actual content of our syllabi and to insist that our garlands of knowledge must be built with flowers from both Eastern and Western gardens.

A helpful site for some Third World titles is http://www.multiworld.org. There is no dearth of scholars from the South who could be co-opted to advise us on how to tackle the problem of educational enslavement.

Faruqi’s diction is emotionally charged and politically resonant.  It is perhaps strong to those of us used to reading the weekly columns of Stanley Fish.  Should we Westerners study Islamic jurisprudence, and even Sharia law, and why?  Fish himself has commented on a related matter here and here.  His articles may seem closer to home to American readers because of their implications for U.S. domestic law.

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  1. i’m not sure i understand your point. you don’t seem to be making one. this is a lot of anti-foundationalist babble like the stuff that comes out of stanley fish

  2. You’re right: I made no point in this post. I asked readers if they had points.

    I rather like Stanley Fish, and I’m flattered that anyone would compare me to him. If only I had half his knowledge…

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