Transcript: Khaled Abou El Fadl on Tolerating Differences in Islamic Law | Apr 10, 2004

An opening slate reads "How did Sharia become a marker of identity for post-colonial Muslim states?"

Khaled Abou El Fadl stands at a podium speaking into a mike. He is clean-shaven, in his early fifties, with receding close-cropped dark brown hair and a thin moustache. He wears a brown sports coat and sweater over a white shirt, and metal-rimmed glasses. He leans forward and holds the lectern with both hands. A blue caption with the Big Ideas shining lamp bulb logo reads "Khaled Abou El Fadl, UCLA School of Law."

Khaled says PART OF
THE ISSUE IS AMBIGUITY IN
LANGUAGE AND THAT IS A MAJOR
PART OF THE ISSUE.
SHARIA PLAYS... THE TERM SHARIA
WHICH MEANS "THE FOUNTAIN OF
GOODNESS," OR "THE WATERHOLE," OR
"THE WAY."
(pause)

Khaled continues PARTLY
BECAUSE OF IT'S LINGUISTIC
FUNCTION, IT PLAYS AN IMPORTANT
SYMBOLIC ROLE.
THE... AS A TERM, IT SYMBOLICALLY
STANDS FOR THE EQUIVALENT OF
SOMETHING LIKE THE CONSTITUTION
OF A PEOPLE.
BUT AT THE SAME TIME THAT
SHARIA PLAYS THAT SYMBOLIC
ROLE, SHARIA IS ALSO A VERY
TECHNICAL LEGAL FIELD... IN OTHER
WORDS, ON ONE LEVEL,
SYMBOLICALLY IT'S LIKE A
CONSTITUTIONAL ORGAN WHICH
PROVIDES PRINCIPLES THAT DEFINE
A PEOPLE AND DEFINE A NATION,
BUT ON THE OTHER HAND, SHARIA
IS A LEGAL INSTITUTION, FULL OF
TECHNICAL RULES AND A VERY
TECHNICAL SET OF PRACTICES AND
A TECHNICAL LEGALISTIC CULTURE.
AND THAT... THAT DUALITY BECAME...
PRODUCED A LOT OF CONFUSION,
BECAUSE ON THE ONE HAND WHEN
MUSLIMS MARSHALLED AROUND THE
IDEA OF SHARIA, MOST OF THOSE
WHO MARSHALLED AROUND THE IDEA
OF SHARIA, HAD NO IDEA WHAT THE
TECHNICALITIES OF THE SYMBOLIC
CONSTRUCTS ARE.
THEY HAD... THEY DIDN'T HAVE THE
FOGGIEST IDEA IN A DAY TO DAY
MATTER, IN A PRACTICAL,
CONCRETE MATTER, OF WHAT ARE THE
VARIOUS FUNCTIONS OF THIS
TECHNICAL FIELD OF INQUIRY.
BUT THEY MARSHALLED AROUND
SHARIA AS A SYMBOLIC CATEGORY.
AS SYMBOLIC FOR INTEGRITY AND
AUTONOMY AND INDEPENDENCE OF
MUSLIM IDENTITY.
SADLY THOUGH, WHEN POLITICS GET
MIXED UP WITH LAW, WHAT YOU
HAVE IS REALLY BAD LAW.
I MEAN OF COURSE, AMERICAN
REALISTS WOULD BELIEVE THAT THERE IS
NO APOLITICAL LAW BUT I
DISAGREE WITH THAT.
WHEN YOU HAVE LAW... THE PRACTICE
OF LAW BECOMING PRIMARILY A
POLITICAL ACT AND HIGHLY
POLITICIZED ACTIVITY, YOU GET
LAW THAT IS RESULT-ORIENTED,
THAT IS HIGHLY OPPORTUNISTIC
THAT DISMISSES ALL SENSE OF
PRINCIPLE AND SYSTEMATIC
METHODOLOGY, AND I THINK THAT IS
EXACTLY WHAT HAPPENED IN
CONTEMPORARY ISLAMIC LAW PRACTICE.
BECAUSE OF THE PRIMACY OF
POLITICAL SYMBOLISM, THE
TECHNICALITIES WENT TO HELL, AND
THE TECHNICALITIES WERE MADE A
MOCKERY OF TO THE POINT THAT IT
IS FAIR TO SAY THAT MOST OF THE
ADVOCATES OF ISLAMIC LAW IN THE
CONTEMPORARY AGE ARE PEOPLE WHO
ARE BY TRAINING ARE ENGINEERS
AND COMPUTER SCIENTISTS.
IN FACT, I MEAN IT IS FAIR ALSO
TO SAY THAT BECAUSE... IT HAS
BECOME, IRONICALLY, THE WAY TO
BECOME A SELF-DECLARED EXPERT
ON ISLAMIC LAW IS TO STUDY
COMPUTER SCIENCE OR ENGINEERING
AND THE REASON FOR THAT IS
BECAUSE YOU CAN PRACTICE THE
POLITICAL SYMBOLISM AND NOT
BOTHER WITH TECHNICALITIES.
NOT BOTHER WITH ACTUALLY
KNOWING HOW IT'S SUPPOSED TO,FUNCTION.
I SHOULD SAY ONE OTHER THING IS
THAT IN THE WAY THAT IN PRE-
MODERN DYNAMICS, THIS TENSION
BETWEEN SHARIA AS A SYMBOLIC
CONSTRUCT, AS A CONSTITUTIONAL
CONSTRUCT AND SHARIA AS A
FUNCTIONAL LEGAL SYSTEM, WAS
RESOLVED IN A VARIETY OF WAYS,
AND ONE OF THOSE WAYS WAS A
DISTINCTION BETWEEN FIQH
AND, MADHHAB WHICH
FUNCTIONED LIKE POSITIVE LAW
AND THEN THE MORE THEORETICAL
PART OF SHARIA WHICH IS
MAQASAID AND,QAWA'ID AND SO ON, WHICH
FUNCTIONED LIKE THE
FOUNDATIONAL PREMISES, AND THERE
WAS A DE FACTO DIVISION
BETWEEN POSITIVE LAW AS IT
FUNCTIONS ON THE GROUND, AND THE
IDEAL CONSTRUCT OF LAW AS A
CONSTITUTIONAL SYMBOLIC CONSTRUCT.
THAT DISTINCTION FOR ALL
PRACTICAL MATTERS HAS BECOME
RENDERED AMBIGUOUS AND VAGUE IN
THE MODERN AGE TO THE POINT
THAT IT IS NOT CLEAR WHETHER IT
EXISTS ANYMORE.

A slate reads "Why are Muslims preoccupied with the idea of creating a pure Islamic state?"

Khaled says ACTUALLY THE EXAMPLE OF THE
STATE, THE OBSESSION WITH THE
IDEA OF THE ISLAMIC STATE AND
THE FAILURE TO CONTEXTUALIZE
AL-MAWARDI OR SOMEONE LIKE AL-MAWARDI.
THE OBSESSION WITH THE IDEA OF THE
ISLAMIC STATE IS PART AND
PARCEL OF THE DYNAMIC THAT I
WAS DESCRIBING, THE CLINGING
ONTO ABSOLUTES THAT PROVIDES A
COMFORT ZONE WHEN CONFRONTING
THE CHALLENGES OF MODERNITY.
DESPITE THE FACT THAT THESE ABSOLUTES
HAVE NUMEROUS... DOCTRINALLY HAVE
NUMEROUS PROBLEMS AND GAPS IN
REASONING AND GAPS IN LOGIC AND
THE WHOLE DYNAMIC WITH THE
ISLAMIC STATE, I MEAN THE
CLINGING ONTO THE IDEA OF A
NOTION OF AN ISLAMIC STATE, WAS
FOR INSTANCE THE HARIR PEOPLE WHO
ARE PROBABLY TODAY THE MOST
ARTICULATE DEFENDERS OF THIS NOTION.
THERE'S SIMPLISTIC LOGIC
APPLIED AND ASSUMPTION THAT
THIS SORT OF IDEAL, UTOPIA-LIKE
STATE WILL COME TO BE AND
AUTOMATICALLY THE PROBLEMS, IN
FACT THE ALIENATION THAT
MUSLIMS FEEL IN MODERNITY IS
GOING TO DISSOLVE.
THAT THE STATE SOMEHOW IS GOING
TO BE THE INSTRUMENT OF
DELIVERANCE FROM THE SENSE OF
ALIENATION AND THE SENSE OF
ORPHANAGE THAT EXISTS IN MODERNITY.
IN REALITY, OF COURSE, THE
STATE IS A FAR MORE
COMPLEX THING AND ONE OF THE
INTERESTING POINTS IS THAT IN
THIS DEFENSIVE MODE, PEOPLE ARE
OFTEN OBLIVIOUS OF THE
EXTENT TO WHICH IN THEIR
DEFENSIVE MODE, WHEN THEY MAKE
A DEFENSIVE ACT, THE EXTENT TO
WHICH THEY ARE VERY MUCH A
PRODUCT OF THEIR OWN HISTORICAL CONTEXT.
THE EXAMPLE OF AL-MAWARDI IS A GOOD ONE.
WHY IS AL-MAWARDI OR SOMEONE
LIKE AL-MAWARDI SO SIGNIFICANT
IN ISLAMIC THOUGHT TODAY?
MY ANSWER? THERE IS REALLY ONE REASON THAT
AL-MAWARDI IS SO SIGNIFICANT IN
ISLAMIC THOUGHT TODAY, AND THAT
IS BECAUSE OF ORIENTALIST SCHOLARS.
YOU LOOK AT ISLAMIC LITERATURE
AND WHAT ABU AL-HASAN
BY AL-MAWARDI ACTUAL... ACTUAL
ROLE IT PLAYED AND AL-MAWARDI'S
POSITION, OTHER THEORISTS IN
ISLAMIC HISTORY, AND YOU'LL
DISCOVER SOMETHING VERY INTERESTING.
ORIENTALISTS, PARTICULARLY GIBB,
AND TO A CERTAIN EXTENT WATT,
INTERPRETED ISLAMIC POLITICAL
THEORY PLACING AL-MAWARDI IN A
CRITICAL, CENTRAL JUNCTION AND
AS OFTEN HAPPENS, IN
CONTEMPORARY MUSLIM THINKING,
WE... IN SEAMLESS, UNCONSCIOUS
PROCESS, WE TRANSPLANT IDEAS
THAT ORIGINATED ELSEWHERE LIKE
SOME HOLLYWOOD PROJECTIONS OF
WHAT AN ARAB IS, AND ADOPT IT
AS IF IT HAS BEEN AUTHENTIC
FROM THE VERY BEGINNING. AND SO,
REMARKABLY, YOU FOUND THAT
ISLAMIC THEORISTS OR PEOPLE WHO
ARE CLAIMING TO ACHIEVE A
DEGREE OF ISLAMIC AUTHENTICITY,
LIKE GIBB AND LIKE WATT, SIMPLY
REPRODUCE THAT DISCOURSE
WHICH PLACED AL-MAWARDI IN THE
CENTRE OF ISLAMIC POLITICAL
THOUGHT, AND IT'S REMARKABLE.
I MEAN IT IS REMARKABLE BECAUSE
TO THE EXTENT THAT IT REVEALS
HOW DEPENDENT ISLAMIC
THINKING HAS BECOME, EVEN WHEN
IT IS ATTEMPTING TO REBEL
AGAINST DEPENDENCE.
AGAIN, I REPEAT, AL-MAWARDI WAS
CENTRAL PRIMARILY THROUGH THE
INVENTION OF GIBB.
HE MISUNDERSTOOD WHAT
AL-MAWARDI WAS DOING AND HE
MISUNDERSTOOD THE IMPORTANCE OF
AL-MAWARDI'S--SO-CALLED AL-
MAWARDI'S COMPROMISE AND HE
MISUNDERSTOOD THE POSITION OF
AL-MAWARDI'S ABU AL-HASAN AND SO ON.
WHEN IT COMES TO EFFORTS BY, AT
LEAST PROMISING INTERPRETERS,
PROMISING VENUES FOR
CONTEMPORARY ISLAM, I HAVE A
LOT OF DISAGREEMENTS WITH
[Islamic Name].
MORE DISAGREEMENTS THAN
SIMILARITIES, BUT YOU KNOW,
BUT HE AT LEAST TRIES TO WORK
THROUGH HIS WAY OF ENGAGING
MODERNITY BEYOND REALLY ACTIVE THINKING.
AS HIS INTERPRETATION OF THE
QUR'AN AND SO ON, I FOUND MORE
COMMON GROUNDS, BUT HIS
SPECIALTY IS NOT ISLAMIC LAW, SO
WE HAVE DIFFERENT FIELDS.
BEYOND MINOR SCHOLASTIC
QUIBBLES, LET ME SAY THIS... IF I
UNDERSTAND HIS ARGUMENT
CORRECTLY IT IS THAT WE RESORT
TO THE LEGAL FICTION OF ABROGATION.
IN ORDER TO RESOLVE TEXT THAT
IS PROBLEMATIC IN MODERNITY.
I... THAT RESORT TO ABROGATION IS
SIMILAR TO THE RESORT OF
DECLARING TEXT "NULL AND VOID."
MY REACTION TO THIS IS WHAT IS
THE AUTHORITY FOR DOING THAT?
WHERE DO YOU GET THE AUTHORITY
TO DECLARE PRECEDENCE NULL AND VOID.
IN ADDITION, UNLESS ONE WORKS
OUT A SYSTEMATIC, METHODICAL
FASHION BEYOND SIMPLY, "WELL I
DON'T... THIS TEXT, I DON'T LIKE
THIS TEXT... I'M GOING TO DECLARE
IT ABROGATED."
I JUST DOESN'T ENGENDER THE
TYPE OF SERIOUSNESS THAT I
THINK ISLAMIC SOURCES SHOULD BE
DEALT WITH AND IT... THIS LACK OF
SERIOUSNESS IS TO ME THE OTHER
SIDE OF THE COIN TO REACTIVE
AND DEFENSIVE THINKING.
IN OTHER WORDS IT'S THE SORT OF
SAME OPPORTUNISTIC DEALING WITH
ISLAMIC SOURCES THAT I FIND ON
THE PART OF REACTIVE AND
DEFENSIVE MODES.

A slate reads "Is shaping of Islamic jurisprudence a reaction to modernity?"

Khaled says MAYBE
THE PROBLEM IS NOT THE WAY
MUSLIMS REACT TO MODERNITY
MAYBE THE PROBLEM IS MUCH, MUCH
OLDER THAN THAT AND IT... THAT
ISLAMIC LAW HAS STOPPED
DEVELOPING, PARTICULARLY AFTER
THE GATES OF IJTHIHAD
WERE CLOSED SOMEWHERE BETWEEN
THE 10TH AND THE 13TH CENTURY.
THAT'S A GOOD QUESTION BECAUSE IT PUTS
US SQUARELY IN FRONT OF THE ISSUE
OF HISTORICAL INTERPRETATION
AND HOW WE UNDERSTAND ISLAMIC HISTORY.

In the audience, a woman in her forties with Islamic features, with long curly dark brown hair and glasses, shows keen interest.

Khaled continues LET ME START OUT BY SAYING
THIS... I BELIEVE THAT THE IDEA
THAT THE DOORS OF IJTHIHAD WERE CLOSED,
IS NOTHING BUT
A MODERN MYTH, AND FURTHERMORE I
BELIEVE THAT IT WAS A MYTH INVENTED
BY ORIENTALIST SCHOLARS.
I'M NOT SAYING THAT ORIENTALIST
SCHOLARS ARE TO BLAME FOR
EVERYTHING WRONG WITH ISLAMIC,
HISTORICAL INTERPRETATION BUT
ON THIS ONE, AND THE AL-MAWARDI
ONE, THEY ARE TO BLAME.
SHOCKED, I READ IN A FEW SOURCES
JURISTS CLAIMING THAT THERE IS
NO NEED FOR FURTHER IJTHIHAD AND JUMPED TO
THE CONCLUSION THAT THE DOORS
TO IJTHIHAD WERE CLOSED.
THEY DON'T ANSWER WHO CLOSED THEM.
WHEN, HOW, WHERE?
WHERE ARE THESE GATES THAT ARE
SUPPOSED TO BE CLOSED?
OF COURSE THEY'RE SYMBOLIC... THAT
DOESN'T EXIST, BUT THE POINT IS-
THAT NOW... SO YOU MIGHT ASK,
"BUT WAIT A MINUTE ISN'T IT
TRUE THAT AFTER THE 10TH
CENTURY, THERE WERE NO FURTHER
SCHOOLS OF THOUGHT?
ISN'T IT TRUE THAT "TAQLID," OR IMITATION,
BECAME THE MODE OF OPERATION IN
ISLAMIC LAW AND HERE THE
PROBLEM IS THE FAILURE TO
INTERPRET ISLAMIC LAW FROM
PARADIGMS THAT ARE VALID FOR A
LEGAL SYSTEM.
WHAT ORIENTALIST SCHOLARS
OBSERVED... WHAT I WOULD... WHAT
ORIENTALIST SCHOLARS OBSERVED
IS THAT ISLAMIC LAW... IN ISLAMIC
LAW THERE WAS A PROCESS BY
WHICH PRECEDENCE AND ADHERENCE
TO PRECEDENCE AND STICKING TO
THE AUTHORITATIVENESS OF LEGAL
PRECEDENCE WAS EMPHASIZED AND
GIVEN A MORE FORMAL POSITION,
AND BECAUSE THEY WERE NOT AT
ALL ENGAGING OR INTERPRETING
ISLAMIC LAW FROM HISTORICAL
PARADIGMS THAT ARE VALID FOR
UNDERSTANDING A LEGAL SYSTEM,
THEY JUMPED TO THE CONCLUSION
THAT THE USE OF OR THE RELIANCE ON
PRECEDENCE MEANS THE FAILURE OF CREATIVE THINKING.
THE TRUTH OF THE MATTER IS,
[Islamic name] IS WELL AFTER
THE 10TH CENTURY.
[Islamic name] IS WELL AFTER
THE 10TH CENTURY.
[Islamic name] IS WELL AFTER
THE 10TH CENTURY.
[Islamic name] IS WELL AFTER
THE 10TH CENTURY.
EVEN [Islamic name] IS WELL
AFTER THE 10TH CENTURY.
AND I COULD GO ON NAMING
SEVERAL HUNDREDS OF NAMES OF
THE PIVOTAL CENTRAL JURISTS, ALL
OF WHICH COME AFTER THE 10TH
CENTURY AFTER THE GATES OF IJTHIHAD
WERE SUPPOSEDLY CLOSED.
ALL THAT HAPPENED AFTER THE 10TH
CENTURY WAS NOT THAT ISLAMIC
LAW HAD STOPPED DEVELOPING, AND
NOT THAT THE GATES OF IJTHIHAD STOPPED, OR
IJTHIHAD WAS CLOSED,
ALL THAT HAPPENED WAS THE
LEGAL... TECHNICAL LEGAL PRACTICE
OF THE POSITION OF PRECEDENCE,
THE METHOD BY WHICH LAW WAS
PRACTICED, SHIFTED AND ADOPTED
DIFFERENT TERMINOLOGY, BUT
INNOVATIVE LEGAL THINKING
CONTINUED ON WELL INTO THE 15TH
CENTURY, AND THE REASON THAT
ISLAMIC LAW FAILS IN THE AGE OF
MODERNITY HAS NOTHING, IN MY
OPINION, TO DO WITH THE
PROCESS OF FOSSILIZATION
TAKING PLACE WITHIN ISLAMIC LAW ITSELF.

A slate reads "Can principles of Sharia be used in family law in Canada?"

Khaled says THE
BEST ADVICE I COULD GIVE IS
THAT BEFORE ANYONE SHOULD
SUBMIT THEMSELVES TO AN
ARBITRATION PANEL, MAKE SURE
THAT THOSE WHO ARE STAFFING IT
KNOW CANADIAN LAW AND... AS WELL
AS ISLAMIC LAW, BECAUSE IN MY EXPERIENCE
I'VE HAD ARBITRATION PANELS IN THE
U.S. MADE UP OF PEOPLE WHO HAD NOT THE
FOGGIEST CLUE ABOUT AMERICAN
LAW AND WHAT THEY ENDED UP
DOING WAS JUST COMPLETELY
UNENFORCEABLE AND IN FACT,
AGAINST PUBLIC POLICY, AND AS A
RESULT, THE ARBITRATION WAS
NOTHING MORE THAN REALLY A JOKE.
IT WAS A WASTE OF EVERYONE'S TIME.
SECOND, IS.THIS TAKES US BACK
TO "WHAT ARE WE TALKING ABOUT
WHEN WE SAY ISLAMIC LAW?"
IF ISLAMIC LAW IS A SET OF A
BUNCH OF LEGAL COMMANDS, DO
THIS, DO NOT DO THIS... THEN
THAT'S ONE THING, AND WE SHOULD
UNDERSTAND THE IMPLICATIONS OF THAT.
IF ISLAMIC LAW IS A SET OF
PRINCIPLES AND METHODOLOGIES,
THAN THAT'S QUITE ANOTHER, AND
LET ME GIVE YOU AN EXAMPLE.
IN ARBITRATION PANELS IN THE
U.S., SOMETIMES IT HAS BEEN
STAFFED BY INDIVIDUALS WHO HAVE
LEARNED ISLAMIC LAW, BUT
LEARNED ISLAMIC LAW IN... NOT AS
JURISPRUDENCE, BUT AS A BUNCH OF
MEMORIZED, TECHNICAL, LEGAL COMMANDMENTS.
SO, FOR INSTANCE, THEY LEARNED
THAT ACCORDING TO THIS SCHOOL
OF THOUGHT, A WOMAN UPON
DIVORCE IS NOT ENTITLED TO
ALIMONY AT ALL.
ACCORDING TO THAT SCHOOL, A
WOMAN IS ENTITLED TO UP TO A
YEAR OF ALIMONY, AND ACCORDING
TO THIS SCHOOL, AND SO ON... AND
THEN YOU HAVE A DIVORCE, AND
THEY GO FOR ARBITRATION AND THE
SO-CALLED JURIST SAYS, "WELL I
CAN'T GIVE YOU ALIMONY FOR MORE
THAN ONE YEAR BECAUSE EVEN
UNDER THE MOST LIBERAL ISLAMIC
SCHOOL OF THOUGHT, YOU ARE
ENTITLED TO NO MORE THAN ONE
YEAR OF ALIMONY."
NOW, YOU COMMENT ON A CASE, AND YOU
SAY, "WELL HOW ABOUT THE FACT
THAT THIS WOMAN MAY NOT HAVE
BEEN EMPLOYED OUTSIDE THE HOUSE
FOR THE PAST 20 YEARS?
HOW ABOUT THE FACT THAT THIS
WOMAN MARRIED WHEN SHE WAS 18
YEARS OLD, CAME FROM PAKISTAN,
LIVED BASICALLY IN THIS
HOUSEHOLD ALL HER LIFE?
HOW ABOUT THE FACT THAT THIS
WOMAN... HER PARENTS NOW ARE DEAD?
SHE HAS NOT OTHER VIABLE MEANS
OF SUPPORT, AND SO ON?"
AND TYPICALLY THE RESPONSE YOU
GOT FROM THESE ARBITRATION
PANELS STAFFED BY THESE
INDIVIDUALS IS, "WELL... TOUGH.
THE RULE OF LAW IS THE RULE OF
LAW, AND THE LAW SAYS ONE YEAR
OF SUPPORT AT MOST."
THEY MIGHT BE PRACTISING LEGAL
COMMANDMENTS BUT THEY'RE NOT
PRACTISING ISLAMIC JURISPRUDENCE.
BECAUSE ISLAMIC JURISPRUDENCE IS
MAQASID OBJECTIVES, QAWA'ID MAXIMS OF LAW,
AND MADHAD METHOD OF LAW.
THE LEGAL DETERMINATION, IN
OTHER WORDS THE RESULT THAT YOU
REACH MUST ACHIEVE OBJECTIVES
OF EQUITY, JUSTICE, PUBLIC POLICY.
WHAT NEEDS TO BE APPLIED
CORRECTLY IS THE METHODOLOGY,
THE OBJECTIVES, AND THE PRINCIPLES.
SO IN MY VIEW FOR INSTANCE, THE
MORE ISLAMICALLY CORRECT
ADJUDICATION COULD BE ALIMONY
FOR LIFE, OR ALIMONY UNTIL
REMARRIAGE, AND THAT WOULD BE
THE MORE ISLAMICALLY CORRECT
POSITION BECAUSE IT IS MORE
CONSISTENT WITH THE MAXIMS OF
LAW, WITH THE OBJECTIVES OF THE
LAW, WITH THE METHODOLOGIES OF THE LAW.
WHILE IN 99 PERCENT OF SO-CALLED
PRACTITIONERS I'VE SEEN IN THE
UNITED STATES AND CANADA, THEY ARE
INDIVIDUALS WHO'S FAMILIARITY
WITH THE LAW NEVER EXCEEDS
ANYTHING BUT A MEMORIZATION OF
A BUNCH OF COMMANDMENTS, AND
THEREFORE THEIR APPLICATION OF
ISLAMIC LAW ENDS UP TO BE, NOT
JUST UNJUST, BUT EVEN OFFENSIVE.
I'LL GIVE YOU ONE FINAL EXAMPLE.
I HAD A CASE IN WHICH A GUY AFTER
40 YEARS OF MARRIAGE, DIVORCES HIS WIFE.
HE CONVINCES HIS WIFE TO "SUBMIT
HERSELF TO THE WILL OF GOD," YOU
KNOW, COME BACK TO THE
SUBMISSION THING, BECAUSE "IF WE
ARE TWO MUSLIMS WE MUST SUBMIT
OURSELVES," ETC., ETC.
THEY GO TO IMAM AND THE IMAM
BASICALLY GIVES HER HER CLOTHES
AND ABOUT 1,000 DOLLARS... THAT'S IT.
AND THE MAN HAS A BUNCH OF
[Islamic term] TO SUPPORT HIM.
OF COURSE THE IMAM IN ORDER TO
DO THAT, HAD TO IGNORE ALL
NOTIONS OF ISLAMIC EQUITY OR
OBJECTIVES OF THE LAW IN THE
FIRST PLACE, AND TO ME, I WAS
DOING SOMETHING MORAL AND
ETHICAL WHEN I SUED THIS GUY
AND I TOOK HIM TO COURT AND
DRAGGED HIM THROUGH THE MUD, AND
ALL OF THAT AND I REMAINED
CONVINCED THAT WHAT I DID WAS
MORE TRUE TO ISLAMIC LAW THAN
WHAT THIS IMAM DID.
I AM JUST VERY SCEPTICAL ABOUT
ARBITRATION PANELS IN THE WEST
BECAUSE I'VE ALSO SEEN THE
BRITISH MODELS.
IF YOU HAVE SOMEONE WHO IS
TRAINING IN CANADIAN LAW AND
TRAINING IN ISLAMIC
JURISPRUDENCE AND LEGAL
METHODOLOGY, THEN I SAY OKAY.
BUT THEN SOMEONE WHO KNOWS
CANADIAN LAW WILL ALSO KNOW
WHAT THE COURT WILL ENFORCE AND
WHAT A COURT WILL REFUSE TO ENFORCE.
SO FOR INSTANCE, IN AMERICAN LAW
CUSTODY DETERMINATIONS ARE NOT
ENFORCEABLE, AND I COULD TURN
AROUND JUST REARRANGE CUSTODY
DETERMINATIONS.
GO TO COURT AND HAVE A TRIBUNAL OVER.
BUT JUST THE TYPE OF PEOPLE
THAT I SEE SO-CALLED "PRACTISING
ISLAMIC LAW" THESE DAYS.I DON'T KNOW.

(Subdued laughter)
[Applause]

Watch: Khaled Abou El Fadl on Tolerating Differences in Islamic Law