Muslims and Global Justice

Chapter 9. Globalization and Jurisprudence: An Islamic Perspective

Chapter 9 Globalization and Jurisprudence: An Islamic Perspective Professor Harold J. Berman has argued since the 1980s that the three traditional (and here we can read Western) schools of jurisprudence—positivism, naturalism, and historicism—should be integrated or that an integrative jurisprudence would draw on elements of all three schools.1 Although I agree with the vision and rationale of Professor Berman’s approach to an integrative jurisprudence, I maintain an overriding concern about its ability to incorporate different historical experiences and conceptions of law. As I understand it, the basic thrust of his approach is to revive the historical school of legal theory and to reintegrate it with its two rivals, positivism and natural law theory . The premise and rationale of this proposal owe much to the dynamics of an increasingly multifaceted globalization, which underpin Berman’s call for the clarification and institutionalization of what he terms “world law.”2 It is to be expected that Berman would explain and illustrate his proposal with references to the historical experiences and conceptions of law most familiar to him—what he calls the “Western legal tradition.”3 But the questions remain. Can the concepts and methodologies of an integrative jurisprudence incorporate significantly different legal traditions from other parts of the world, even at a theoretical or conceptual level? Is such a project possible at all, and, if so, in what sense? Since Berman’s approach draws primarily on preexisting conceptions of Western schools of legal theory, the philosophical and political scope of such constituent elements, when integrated into a global school of jurisprudence, becomes uncertain. The fact that shared legal and philosophical principles operate through different national jurisdictions does not necessarily preclude the formulation of a more inclusive, integrative jurisprudence. The scope of 224 Chapter 9 the proposed jurisprudence can, of course, be limited to so-called national legal traditions, like that of the United States of America or what Berman calls the Western legal tradition. It seems to me that such limited claims, however, raise serious questions about the concept and methodology of the proposed integrative jurisprudence. At the national level, one may wonder about whose history or vision of history and whose conceptions of law are taken seriously in the formulation of this approach. Does it include minority or marginalized perspectives, like those of Native Americans or Hispanic communities? Indeed, are notions like “positivism” and “natural law” meaningful for such minority or marginal perspectives? If the scope of an integrative jurisprudence is supposed to be broader than a specific national jurisdiction, the determination of that scope becomes problematic . To take a geographic criterion for the Western legal tradition would require accounting for the experiences of Spain under Francisco Franco, Nazi Germany, and Soviet Russia, which requires some ideological and political analysis. A geographic criterion would also leave out Latin America, Australia , and other parts of the world that are generally considered to be part of a Western legal tradition. Founding the determination on some normative or ideological ground is similarly problematic. For instance, how does the Western legal tradition account for socially conservative and economically capitalist perspectives, as well as liberal, socialist, or welfare ideologies that do not share the same ideological or philosophical assumptions? However conceived, it seems to me, such broad categories like the Western legal tradition raise corresponding questions of inclusion and exclusion in defining law and elaborating its jurisprudential framework. Moreover, Berman’s use of the term “world law” and emphasis on multifaceted globalization may indicate that he is speaking of a global scope for his proposed integrative jurisprudence. At that level, the same questions arise even more strongly when one considers the meaning of underlying notions of positivism and natural law and how such views of law and jurisprudence can be integrated. It is not clear, for example, how this approach applies to drastically different concepts of law, such as Islamic or Jewish law, which claim a divine source for legal authority, or to other significantly different legal traditions like those of China. How and to what extent can one speak of law and jurisprudence in the various legal traditions of the world in comparative terms that make an integrative jurisprudence possible at all? In this light, it seems that Berman’s call for an integrative jurisprudence raises similar questions at whatever level it is applied. For the purpose of this Globalization and Jurisprudence: An Islamic Perspective 225 chapter, I take his...