Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence

Authors

Mark L. Movsesian, St. John's University School of LawFollow

Document Type

Article

Publication Title

Seton Hall Law Review

Publication Date

2010

Volume

40

First Page

861

Abstract

Although American scholarship has begun to address both Christian and Islamic jurisprudence in a serious way, virtually none of the literature attempts to compare the place of law in these two world religions. This Essay begins to compare Islamic and Christian conceptions of law and suggests some implications for contemporary debates about religious dispute settlement. Islam and Christianity are subtle and complex religions. Each has competing strands; each has evolved over millennia and expressed itself differently over time. Moreover, although systematic treatments of Islamic law are beginning to appear in English, much remains available only in languages, like Arabic, that are unfortunately inaccessible to most American scholars.

Notwithstanding these complexities, some generalizations are possible. Both Islam and Christianity spring from faith, but the two religions express faith differently—and the difference relates to law. In Islam, a comprehensive body of law sacralizes daily life and connects believers to God. Islam's primary discourse, fiqh, or 'jurisprudence," attempts to derive that law from scriptural sources. Islam's clergy, the ulama, or "learned"—often translated as "jurists"—are experts in that law. By contrast, Christianity does not express its faith through a body of law. Christianity's traditional discourse is theology, a reflection on God's nature, not His will. Its clergy are sacramental ministers, not legal scholars. This is not to say that Christianity embraces antinomianism or lacks interest in ethical behavior. On the contrary, most contemporary churches have some form of canon law, and Christian jurisprudence exists. But law lacks the significance in Christianity that it has in Islam. Unlike fiqh, canon law serves an auxiliary function in the life of Christianity; it is facilitative, not constitutive, of the believer's relationship with God. Unlike fiqh, it has a fairly limited scope. And, unlike fiqh, Christian jurisprudence is not exegetical. Compared with Islam, as many scholars note, Christianity focuses more on orthodoxy than orthopraxy, on correct doctrine rather than correct practice.

The different emphasis that Islam and Christianity place on religious law is reflected in contemporary attitudes toward religious tribunals. In some Western societies, Muslim organizations have called for Islamic tribunals to resolve family and commercial disputes among consenting Muslims. By contrast, a desire for religious tribunals does not loom large for contemporary Christians. To be sure, factors beyond internal religious dynamics also help explain why contemporary Muslims and Christians value religious law differently. Comparatively speaking, law figures more prominently in the life of Islam than Christianity, and this difference surely influences how Muslims and Christians view religious tribunals today.

Finally, I should note that my interest relates to Islam and Christianity as empirical phenomena. They also represent much more than that. I do not, however, address the religions' truth claims here, nor do I attempt to evaluate their respective approaches to law. I attempt instead to offer tentative views on a difference that lurks in the background of Muslim-Christian interactions, one that already has contributed to controversy in two Western democracies. Before Muslims and Christians can negotiate this difference, they must understand it. I hope this Essay contributes to that important endeavor and to the growing body of work in comparative religious law.

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Available at: https://scholarship.shu.edu/shlr/vol40/iss3/2/