In the Jurist’s Seat: Teaching Analogical Reasoning by Debating Intoxicants in Islamic Jurisprudence

Among the perennial challenges for scholars of Islamic studies (and religious studies, generally) when teaching on Islam is to navigate beyond what Shahzad Bashir calls the conventional pedagogical paradigms of "theological, nativist, and orientalist" frameworks. This need is particularly acute in the context of courses on Islamic law, where the subject matter and minutia of juristic debates can feel unfamiliar to undergraduates and result in the "othering" of Muslims (past and present). In a recent, mid-level undergraduate seminar on “Islamic Law, Ethics, and Practice,” the course responded to Bashir’s pedagogically rich A New Vision for Islamic Pasts and Futures and Carl Ernst’s It’s Not Just Academic! Essays on Sufism and Islamic Studies by crafting a midterm "jurisprudential debate": students put themselves in the analytical shoes of a legal theorist (faqih), oral advocate (wakil), or judge (qadi) to explore firsthand the power of analogy in Islamic legal discourse.

The course comprised 35 undergraduate students from a variety of cultural backgrounds pursuing diverse courses of study.  Drawing on Islamic studies and legal training, the course was premised on emphasizing the methods and modalities of legal reasoning in place of teaching "about" Islamic law. The course also aimed to avoid the well-trodden practice of foregrounding the historical development of Islamic law, which has historically lent itself—problematically—to both "great man" historical narratives as well as orientalist preoccupations with decontextualized "classical texts." If enduring stereotypes present Muslims as irrational automatons who unthinkingly apply literal meanings of scripture, what could serve as a better antidote than to invite students to apply the rational toolkit of Muslim jurists themselves?

After initial course discussions grappling with orientalism, scholarly problematizations of the category of religion, and the plurality of reconstructions of Muhammad’s life (per Kecia Ali’s The Lives of Muhammad), students began an extended block of rational-skills-building training. Students were introduced to analytical lenses that are frequently deployed both in the US legal context as well as in Islamic jurisprudence (albeit under different names): istihsan (consequentialist reasoning in cases of textual ambiguity), istislah (purposive interpretation), and—above all—qiyas (analogical reasoning). Students applied these tools to fact patterns drawn from famous cases in the annals of English Common Law, constitutional cases from the US Supreme Court's jurisprudence, early Islamic legal history, and to passages drawn from selected bodies of positive law: namely, the US Constitution, the (numerically limited) legal content of the Qur’an, and the (abundant) legal content of hadith sources.

Students weighed, for example, proposed rationales (`ilal / hikam in the Islamic context) for the First Amendment’s protections of freedom of speech—both instrumental and intrinsic justifications. They then deployed analogical reasoning to weigh if—in their individual viewpoints—those rationales (`ilal) would be furthered by extending free speech protections to "symbolic speech" (flag burning, draft-card ripping, etc.) as justices were asked to do in Texas v. Johnson (1989) and United States v. O’Brien (1968). Following the same vein—and in preparation for the midterm debate—students reconstructed the reasoning of early Muslim jurists Abu Hanifa, al-Shaybani, and Malik ibn Anas in reasoning whether a Qur’anic injunction against of khamr (grape wine) should—on the basis of analogical reasoning—be rationally extended to encompass naqi` (date wine), bit` (mead), etc. Students considered how early Muslim scholars differed on this point, as Najam Haider shows in “Contesting Intoxication: Early Juristic Debates over the Lawfulness of Alcoholic Beverages,” which students read to develop a sense of analogical reasoning as practiced within early Muslim legal discourses.

The midterm debate represented the culmination of these weeks of practice with legal reasoning and analysis. The question before the student-jurists took the following form: on the basis strictly of causal (`illa) and analogical (qiyas) tools, would an explicit Qur’anic prohibition of wine rationally entail a general prohibition of any of the following: kombucha (containing trace alcohol), caffeine, psilocybin ("magic mushrooms"), or cigarettes? Students were given the ability to select between the three roles enumerated above: legal researcher (faqih), oral advocate (wakil), or judge (qadi). This permitted students to determine what (if any) speaking responsibilities they preferred to take on. Legal researchers drafted advisory briefs (à la amicus curiae / “friend of the court” briefs) that would be presented as background to judges. Oral advocates prepared arguments to present to the judicial panel on the day of the debate. Lastly, judges prepared questions in advance with which to interact with oral advocates. By generous accommodation of the university’s law school, a courtroom served as venue for the debate, with the instructor presiding as (at student suggestion) "caliph."

From the standpoint of pedagogy, Carl Ernst reminds scholars that any discussion of religion exists within the stakes of a given political context, with Islam often subjected to an "atmosphere of negativity" and "suspicion." Instructors must, in his view, thread various needles, proffering an account of Islam that steers well clear of orientalist exoticization and tropes of "civilization clash,” yet while also avoiding a defensive stance (Ernst, xii, 40). The height of these stakes is further highlighted in "Islamophobia, Feminism, and the Politics of Critique," where Rochelle Terman reflects on the problematic of how to discuss activism and diversity of thought (on gender equity and beyond) within contemporary Muslim communities without feeding neo-imperialist appetites for any narratives that could justify (typically military) interventions (19).

The above debate, in sum, allowed students to encounter Islam (and specifically Islamic jurisprudence) as a dynamic space of deliberative disagreement. Students felt firsthand the semantic and prescriptive openness of scriptural sources that are often represented (outside of academic classrooms) as closed codes demanding obedience by Muslims. Further, as Juliane Hammer has argued in "Constructing Islamic Studies: Gender, Power and Critique as Ethical Tools," the possibility of being a truly "objective interpreter" of Islam (or any discursive tradition) is untenable and the claim itself reinforces colonizer rhetorics (192). As student-jurists debriefed in the wake of the debate—having defended divergent conclusions despite shared rational toolkits—Hammer's significant pedagogical and scholarly insight was internalized firsthand.