Halal Hart: H.L.A. Hart and Divine Law

I’m about to run another crazy H.L.A. Hart-inspired idea by you. It runs along the same lines as my last post, so let me just quote the first few paragraphs of that post as a preface to the thought itself:

According to H.L.A. Hart, law is a union of primary and secondary rules. A rule is a codified directive to someone. Primary rules are primary because they give directives directly to, or impose obligations directly on, those governed by the rule. Secondary rules are rules about the primary ones, specifying “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart, Concept of Law,  p. 94). Among the secondary rules is a “rule of recognition,” which specifies “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart, Concept of Law, p. 94).

The rules of recognition are both ultimate and supreme with respect to a legal system. They’re ultimate in the sense that they (collectively) provide the most fundamental criterion for determining the validity of any given rule within the system. They’re supreme in the sense that they override any competing norms apparently eligible for validity within the system. On Hart’s view, it’s a necessary and sufficient condition of law that within any putative legal system, the primary and secondary rules so conceived are generally obeyed by those governed by them, and the rules of recognition are “effectively accepted as common public standards of official behaviour” by the officials in charge of the system (Hart, Concept of Law, p. 116).

Suppose that a bunch of American Muslims get together and decide, voluntarily, that they want to live under Islamic sharia. Sharia itself consists of primary rules in Hart’s sense, so our bunch of Muslims lay these rules out or single out a text containing them. They then identify a system of Islamic jurisprudence, say, Maliki jurisprudence, that they regard as the authoritative interpretation of sharia. Maliki jurisprudence thus becomes their set of secondary rules.

Self-consciously aiming to live under the union of sharia and Maliki jurisprudence, they then create an organization–The American Maliki Sharia Group (AMSG)–a 501(c)3 organization, with bylaws, members, and a Board of Trustees, intended to function as the institutional set-up for their project of adhering to Islamic sharia. Having done so, they all agree to accept AMSG’s bylaws as the rule(s) of recognition governing their project of living by Islamic sharia in the US. Being intelligent, legally saavy people with good lawyers, they interpret Islamic sharia in such a way as to avoid any conflict with existing American law.

Clearly, the members of AMSG live, to some limited extent, under Islamic sharia (insofar as doing so is consistent with American law). But does this mean that they literally live under Islamic law?

In one sense, you might think that they live under Islamic law, but only in a somewhat trivial sense of Islamic law that is reducible to American contract or corporate law. Anyone who signs a contract and adheres to it lives under (or by) the terms of the contract. Since the contract is a legal agreement, its terms have the force of law. If the contract has an X-character, then trivially, those bound by it live by or under an X-contract, hence (in some sense) under X-law. So the answer turns out to be “yes”: the members of AMSG live under Islamic law, but in just the way that a renter lives under landlord law, or I live under hospital revenue-cycle management law (since I work for a company that engages in it).

I think Hart’s view has a stronger implication that includes but goes beyond the preceding implication. Yes, the members of AMSG live under Islamic law in the semi-trivial contractual sense I’ve just described. But there’s a stronger sense in which they simply live under Islamic law, full stop. This sense is, to be sure, a truncated form of Islamic law–the diluted form permissible under (and compatible with) American law. But it is law in a literal rather than metaphorical sense. If Islamic sharia (as conceived by AMSG) requires five prayers a day at certain prescribed times, then those prayers are legal requirements for members of AMSG. If it requires eating halal by Maliki strictures, then those strictures have legal force. If AMSG follows Saudi Arabian dictates (as opposed, say, to Egyptian ones) on when Ramadan begins and ends, or when the Ramadan fast begins or ends, etc. then it is against the law (for AMSG members) to adopt incompatible dictates. And so on.

This may seem a relatively trivial implication. Words aside, what’s the difference between saying that the adherents of AMSG are legally bound by sharia, and that they are morally bound by it? One difference, I take it, is that being legally bound, the adherent have a legal case against the non-adherent, and can seek damages (or even specific performance) for breach when the non-adherent become non-adherent. If someone within the flock fails to fast during Ramadan, or fails to pray the fajr prayer, or fails to observe halal dietary rules, he sets himself up for legal sanction. Granted, the group can’t impose sanctions that violate American law. But they can do so in fairly stringent, far-reaching ways that are compatible with American law.

You might grant this, but still find it relatively trivial. How does the practice of Islamic law so conceived differ from ordinary contracts? Granted the subject-matter of this contract is relatively unorthodox (relative to the subject-matter of commercial contracts). But there isn’t a substantive difference between the way in which membership in AMSG works, and the way in which, say, employment in any company, or membership in any club, works.

Fair enough. But now imagine that AMSG migrates en masse to a certain town (or geographic location), buys up all of the properties in that town, then secedes from the existing municipality, incorporates as its own municipality, and establishes an Islamic municipality in that location governed by Islamic sharia. Let’s call the place Shariaville. It seems uncontroversial that Shariaville is an Islamic municipality governed by Islamic law–in America. If we ask whether Shariaville is a community living under sharia law in the US, the straightforward answer is “yes.”

Granted, Shariaville is still obliged to give pride of place to American law in any case where American law (local, state, federal) might conflict with Islamic sharia. But as long as AMSG owns all of the property in Shariaville–and it might self-consciously strive to do so in ways that were entirely compatible with American law–that still gives Shariaville plenty of latitude to govern its residents by sharia. If all the adults in Shariaville agree that women (and women in particular) are obliged to dress in ways that reflect Islamic modesty–full hijab, let’s say–then full hijab will become the law of Shariaville. When those adults have children, those children will (until the age of majority) be governed by Islamic laws of modesty.

The same might go for, say, prohibitions on dating, drinking alcohol, extra-marital sex, and/or the norms governing moral and ordinary education. I emphasize, again, that AMSG’s Islamic legal strictures will remain subordinate to American constitutional law, federal and state, as well as American civil rights law, anti-discrimination law, etc. etc. But that still gives Shariaville plenty of room for legal manuever within Islamic strictures. And since violations of American law will require that any aggrieved parties go through the trouble of initiating complaints and/or legal action against AMSG–potentially an onerous requirement for some people, whether for psychological reasons or financial/practical ones–we can infer that many of those violations will likely go unnoticed and ignored. Sharia will dominate the lives of Shariaville’s inhabitants even in cases that, at the margins, violate their legal rights.

Now imagine many iterations of Shariaville, all territorially contiguous with one another. Then imagine multiple proliferating territorial blocs of sharia-adherent communities just like Shariavile (some Hanafi, some Shi’a, some Ahmadi, etc), all being founded simultaneously, within American borders. The result would be the creation of polycentric legal systems, Islamic and American, co-existing within the territorial boundaries of the United States, and reproducing so as to perpetuate themselves to whatever extent is possible. Now imagine that the Orthodox Jews, the canon law-adherent Catholics, the Orthodox Greek and Russian Christians, and even the Empty Cloud Buddhists get into the act. The result would be an American version of the Ottoman millet system of the eighteenth and nineteenth centuries.

Implausible? Well, a version of it exists in Israel today, but is developing in the US as well. The closest Islamic example, Hamtramck, Michigan, is a somewhat weak approximation of the Shariaville example I’ve developed here. But the closest example, Kiryas Joel, New York, an Orthodox Jewish village in upstate New York, fits the mold pretty well. In fact, I’ve relied heavily on the Kiryas Joel example to develop the thought-experiment I’ve laid out here.

Scary? You tell me. I mean, I’m already sharia-adherent. It’s not like I have anything to worry about.

5 thoughts on “Halal Hart: H.L.A. Hart and Divine Law

  1. As we’ll see when we get to him, Fuller would definitely be down with calling this a legal system.

    Relatedly, have you read David Friedman’s Legal Systems Very Different From Ours? (The “Ours” contains a certain presumption of audience, but nevamind.) Here’s the table of contents:

    1. Imperial Chinese Law
    2. Romani Law
    3. The Amish
    4. Jewish Law
    5. Islamic Law
    6. When God is the Legislator
    7. Pirate Law (by Peter Leeson)
    8. Prisoners’ Law (by David Skarbek)
    9. Embedded and Polylegal Systems
    10. Saga-Period Iceland
    11. Somali Law
    12. Early Irish Law
    13. Comanche, Kiowa and Cheyenne: The Plains Indians
    14. Feud Law
    15. England in the Eighteenth Century
    16. Athenian Law: The Work of a Mad Economist
    17. Enforcing Rules
    18. The Problem of Error
    19. Making Law
    20. Guarding the Guardians
    21. Ideas We Can Use

    Liked by 2 people

    • Another chapter that might have gone into the same volume, or one like it:


      My experiences of Palestinian refugee camps were similar to Holzer’s reports on Ghanian ones (not that my knowledge was half as systematic or rigorous as hers). I visited maybe a dozen of them across five visits. My guide would always begin the tour by insisting that the camps were hellish abodes of lawlessness, crime, and chaos. About an hour into the visit, the tone would change, and you’d get a nuanced explanation the law-like dispute resolution and even quasi-legislative systems of the camp, along with the refugees’ zealous insistence on autonomy from the more formal legal systems of the surrounding towns (invariably referring to the Palestinian town or towns surrounding the camp, not to the Israeli authorities).

      Something similar was true of Bedouin encampments, generally (though not invariably) operating at a greater distance from towns. But in the nature of the case, I’d say that the refugee camps had something closer to recognizable legal systems than Bedouin encampments, which arguably were “governed” entirely by custom or tradition.

      Liked by 1 person

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