Lawan, M --- "Teaching Islamic law in opposing jurisdictions: United Kingdom and Nigeria" [2013] LegEdDig 20; (2013) 21(2) Legal Education Digest 16

• Teaching Islamic law in opposing jurisdictions: United Kingdom and Nigeria

---

Teaching Islamic law in opposing jurisdictions: United Kingdom and Nigeria

M Lawan

The Law Teacher, Vol. 47, No. 1, pp 18-31

Islamic law has for long been a subject of study in academic institutions in both Arab and non-Arab Muslim countries such as Egypt, Iraq, Iran, Nigeria and Pakistan. There have also been a number of institutions in non-Muslim jurisdictions which have made the subject part of their curricula since the middle of the nineteenth century. For many reasons, interest in the teaching and learning of Islamic law in Western universities is evidently on the increase. Arguably, there is hardly any part of the world where Islamic law is not presently taught as an academic field. However, while the subject is the same, the approach in teaching it may vary from one jurisdiction to another.

For instance, in Nigeria, unlike the traditional Islamic culture, there is emphasis on the divinity of Islamic law. In the United Kingdom however, there is focus on the human articulation of the law. There are far-reaching consequences from these perspectives. While in the former view there is little or nothing human agency could do in the face of divine injunctions, in the latter view human agency is indispensable in understanding the injunctions. Thus in Nigeria, teaching Islamic law could be said to be teacher-focused with a view to transmitting to students what the law is. In the United Kingdom, the teaching adopts a teacher–student strategy with a view to exploring what the law should be in given circumstances.

Although this article is mainly about the differences in teaching Islamic law in the United Kingdom and Nigeria, it cannot be assumed that there are no similarities between the two jurisdictions.

To start with, Nigeria was a British colony and, ipso facto, its legal system has been significantly influenced by the British legal system. The British set up a dual system of Islamic and English courts in Northern Nigeria where Islamic law was fully applied following the jihad of Usman Danfodio in 1804.

The British colonial government also determined which Islamic civil laws were to be applicable because some aspects thereof were thought to be archaic. Thus any Islamic law that was ‘repugnant to natural justice, equity and good conscience’ or ‘incompatible, either directly or by necessary implication, with any law for the time being in force’ was not valid for application.

Limited aspects of Islamic law applied side by side with English law up to the time of independence in 1960. The Nigerian Constitution later came to recognise this colonial legacy of legal hybridity at both the state and federal levels. For instance, the Constitution establishes both the High Court and the Sharia Court of Appeal at the state level and provides for the application of both English-type law and Islamic law at the two federal appellate courts, the Court of Appeal and the Supreme Court.

One other similarity between the UK and Nigeria is that in both jurisdictions Islamic law is taught through a second language, which is English. The original language of Islam is Arabic and therefore the sources of Islamic law, Qur’an, Hadith, and the other sources derived from classical literature, are in the Arabic language. The teaching of Islamic law in both jurisdictions therefore requires interpretation of the original sources to communicate to students what the law is. The knowledge of Arabic for Islamic law students and teachers, though not necessary, is desirable for better teaching and learning.

In the University of Warwick, no Arabic course is offered for students of Islamic law. However, because of the constant encounter with Arabic terms in the course of the teaching, students are required to take account of the Arabic terms as each is given its meaning in English.

Notwithstanding the noted similarities, there are differences which cut across disciplines in teaching approaches in the two jurisdictions.

A good starting point will be an examination of the literature used in teaching Islamic law in the two jurisdictions. In Nigeria, the literatures used are basically English translations of the Qur’an and Hadith (teachings) of the Prophet Mohammed, textbooks and articles mostly written by conservative Arab, Asian or Nigerian Muslim scholars. A common feature of these literatures is that they are generally descriptive. They transmit the law as it is provided in the original sources; they tell students that the law is a divine provision meant to be obeyed; and that obedience to such law by man is in his own interest both in this life and in the life hereafter. Specifically, this approach does not accept that there is a law-making authority other than God, describing human legislation as intrusion into a divine territory.

The law is regarded as either directly divine (when sourced from the Qur’an or Hadith) or as deriving its authority from the divine sources (when formulated through secondary sources such as the views of Muslim jurists, Ijtihad or Qiyas) and therefore it must be obeyed as it is. Just to take a few examples, in Nigeria, students are taught that the offence of theft attracts amputation of the hand as punishment once the conditions (such as custody of the stolen item and its value) have been satisfied; and that men and women are equal save that owing to the difference in their gender roles which is informed by their varying anatomies, males shall take twice the share of females in inheritance.

In the United Kingdom, the teaching takes a different approach though the same verses of the Qur’an are the subject of analysis. The teacher looks at the classical position in a wider context and he guides students to do so. For instance, the approach taken is to question the applicability of Islamic public (particularly penal) law in modern times especially in the face of international human rights treaties which Muslim countries clamouring for the law are party to. It is argued for instance that amputation of the hand and capital punishments under the Islamic criminal justice system are incompatible with ‘universal’ human rights standards. And United Kingdom teaching describes as ‘discriminatory’ against women the unequal shares in inheritance, something which the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) would frown at.

On polygamy, the Islamic law teacher in the United Kingdom is expected to explain to students that the practice has predated Islam. The pre-Islamic Arab men had as many wives as they could afford. Islam regulated the practice by limiting the number of wives to a maximum of four at a time. Discussions on the topic are contextualised by noting that the provision on polygamy in the Qur’an (Chapter 4 verse 3) was revealed to Prophet Muhammad after the battle of Uhud where many Muslim men died leaving widows and orphans. At a time when (and in a culture where) women were solely dependent on men for their livelihood, there was an urgent need to take measures to cater for these widows and orphans. The Qur’an therefore provided that if the surviving men could not do justice to the orphans (ie. by caring for them voluntarily), they should marry two, three or four women of their choice. But if they feared they could not do justice among the women, then they should marry only one.

In the above context, the aim of the law therefore is to make provision for social welfare and the key word here is ‘justice’. At this point, the teacher explains to students that in understanding Islamic law, Qur’anic provisions must not be read in isolation. There could be some other provisions relevant to the interpretation and application of particular principles. Students are then informed that while on one hand ‘justice’ between wives is a basic requirement for polygamy, on the other hand the Qur’an, down the line in another verse (ie. Chapter 4 verse 129) provides that men can never do justice among women no matter how much they desire to do it.

Non-Muslim scholars of Islamic law, popularly known as ‘oriental scholars’ author a number of scholarly works in Islamic law in the United Kingdom. Unsurprisingly, these works have a non-preaching tone and are not merely descriptive. Interestingly, there are also Muslim scholars adopting a similar or even critical approach to Islamic law. Some of them raise issues within the law and as it affects international instruments having ‘universal’ application calling for introspection in the Muslim world. For instance, there is a strong argument that Islamic public law is incompatible with international human rights law, and it must be reformed in order to achieve a synthesis between the two. In doing this, the issue of the divinity of Islamic law must be revisited because it is a stumbling block to a major reformatory step.

It has also been argued that problems arising from the application of Islamic law particularly on gender issues such as polygamy and inheritance (viewed through the Western secular eye) are rooted in inappropriate interpretation of the divine sources of the law. The world, including the intellectual Islamic world, has been dominated by males and their view of the law contained in the divine sources has been greatly influenced by the stereotype that the male is superior to the female. With these approaches, incompatibility between Islamic law and the secular Western law would remain a permanent issue. However, a balancing literature that does not see dissonance between Islamic law and the secular Western law has emerged.

On a deeper level, there are further differences between the United Kingdom and Nigerian approaches. In Nigerian universities for instance, the authority of the Qur’an and Hadith are unquestionable. In class, Islamic law teachers boldly tell students that ‘the Holy Qur’an is the word of Allah (the Almighty), and the Hadith is the sayings, actions and approvals of the Prophet (Peace Be Upon Him)’. But in the United Kingdom, the practice is to say ‘the Koran is believed by Muslims to be the word of God, and Hadith is the sayings, actions and approvals credited to Mohammed’. What these approaches show is that the former statement is put as a factual statement, a universal truth, while the latter looks more of an opinion at best believed by Muslims. In addition, reference to God and the prophet are qualified in a revered manner in the former statement while in the latter case it is a naked reference.

In the United Kingdom approach, students are even exposed to scholarship which challenges the authority of the Hadith. For instance, in discussing Hadith as the second primary source of Islamic law, students are introduced to the work of a German oriental scholar, Ignaz Goldziher, who argues that the Hadith is not a reliable source of Islamic law. According to him, it is the record of the views of early Muslims and not the teachings of the Prophet or even his companions; it is oral; later collections are larger than earlier ones; there are contradictions among various Hadiths, etc.

In Nigeria, such literature cannot find its way into school curricula and teachers dare not raise such issues in class if at all they know them. What the Nigerian approach does is to introduce students to different classes of the Hadith according to the degree of their authenticity. For instance, a Hadith could be described as hasan (sound) or da’if (weak) depending on the chain of its transmission and the credibility of its reporters. This of course is a veiled reference to the controversies surrounding the Hadith as a source of law. But the controversies are de-emphasised. This shows that bigger controversies such as the ones on ‘the Satanic verses’ are no-go areas. Nigeria is a conservative Muslim society which does not have the culture of questioning early Muslim jurists let alone divine sources of Islamic law. Therefore, views such as Ignaz Goldziher’s could be termed as heresy. In fact, Muslim preachers often encourage taqlid (blind imitation) by reference to a saying credited to the revered jihadist scholar, Sheikh Usman Danfodio, that whoever follows a jurist in this world religiously will meet Allah on the Day of Judgement without any fear.

Absence of the culture of questioning has implications which include the level at which literature is treated by both teachers and students. In Nigeria, the literature used is generally treated superficially as opposed to the UK position which treats it at a deep level. This means that while in the UK the orientation is towards comprehending materials, in Nigeria the orientation tilts towards reproducing the materials.

Questioning in the UK does not come from the literature alone. Students too have imbibed this culture and they use it to the maximum. Islamic law having been rooted in religion, questions on fundamental theological/legal issues do arise, which would hardly be asked in Nigeria. For instance, it is not out of place for a student in the UK to ask his Muslim teacher of Islamic law thus: ‘does your God know the past, the present and the future?’ to which the teacher, being Muslim, would reply: ‘Yes He certainly does’. The student may ask further: ‘Then why did He not provide for issues such as human cloning in the Koran?’ Or on polygamy, students (especially female students) often question why Islamic law does not permit polyandry (the practice of one woman marrying more than one man) since it has permitted polygamy. These questions may cause a long pause because they are surely challenging, and on a cursory glance, they seem difficult.

The culture of questioning is certainly not peculiar to the UK or the West. It is a known culture to the Islamic world. Contemporary issues such as cloning, in vitro fertilisation, surrogacy, human milk banks, stock exchanges, banking, insurance, etc., have been subjects of debates among Muslim scholars in various jurisdictions of the Islamic world such as Egypt, Iraq and Iran. Indeed, Islamic law by its very nature requires debates and other forms of intellectual exercises for its development. Yet Nigeria seems to depart from the Islamic culture of engagement with novel issues and deduction of rules to deal with such issues. The culture seems to be of taqlid (blind following of opinions of early jurists) either out of respect for the jurists or due to absence of real problems requiring legal solutions because of the level of development in the country. The questions may therefore look strange to a Nigerian Muslim teacher who is new to the UK system.

The challenges posed by students of Islamic law to the teaching of the subject in the UK leads us to the differences between the two jurisdictions in general teaching. The first striking thing would be the teacher–student relationship.

In Nigeria, except for those who decide to depart from the norm, teachers generally act like a boss over their students. They are in total control of their class in a manner that barely leaves room for the contribution of students. Students are mostly passive recipients from the teachers. Students are often afraid to ask questions let alone challenge the teacher. As Trigwell et al would put it, this approach to teaching in Nigeria is teacher-focused with the intention of transmitting information to students.

In the UK, the relationship between teachers and students is the opposite: it is friendly. Teachers recognise the worth of students and therefore give room for questions and discussions. They engage students in discussions and encourage them to participate actively. This friendly and interactive relationship is conducive to learning. It balances between the extremes of teacher-focused strategy and student-focused strategy. The result is a teacher–student interaction strategy, which helps students to understand the taught discipline better.

In both the UK and Nigeria, the teacher knows in advance their course outline and shares it with students at the beginning of term. However, the ways in which the outlines are prepared differ greatly. In the UK, the outline is arranged thematically following a timeframe. Group work is organised in the form of weekly seminars for further and deeper discussions of the themes. While lectures are meant for introducing students to general principles in the module with the teacher in the lead, seminars are student-focused, are designed for brainstorming, and their main purposes are to promote deeper and active learning and to build the skills and confidence of students.

In Nigeria however, the course content is transmitted to students either by dictation or by handing out without any sessions plan in most cases. Therefore, lectures are generally conducted without plan, a situation which often leaves some themes not covered at the end of term. There are of course other factors contributing to this situation, such as delay in beginning lectures especially at the commencement of a new academic session when students would have to wait in long queues to enrol manually. Timetables normally contain a one-hour weekly tutorial for each module; but the tutorials are rarely observed and students are in the end left with lectures only. And because the lectures are one-way traffic, students remain completely unexposed to group work. Ultimately, the teaching and learning approaches both become surface instead of deep ones and a deliberate strategy for building students’ skills and confidence is thereby missing.

In the UK, the teacher carefully selects relevant materials for the module, makes copies thereof and distributes these to students in thematic order at the beginning of term. These materials which include chapters in books, journal articles, reliable web materials, etc. are normally distributed along with a synopsis for the module. The synopsis contains guide notes on the various themes, a rich bibliography for further research (most of the literature will be available in the library), and questions for the seminars. In Nigeria, the teacher dictates to students the course outline together with a list of relevant literature (most of which may not be available in the library). No reading materials are distributed. The lecture thus takes the general pattern of dictating notes to students with or without explanation.

The wide gap between these two experiences may not be unconnected to the difference in the resources available to the educational institutions in the two jurisdictions respectively. The UK being a developed country, adequate resources for its educational institutions are made available. Moreover, there is a strong link between some institutions and the private sector thereby increasing sources of funding for the institutions. The institutions in Nigeria, especially public institutions, rely almost solely on state grants and for many reasons, budgetary allocations to education do not reach even half of the UNESCO minimum standard (ie. 26 per cent of budgets). These and other issues have been identified as the challenges facing (higher) education in Africa generally.

Teaching Islamic law in the UK for an average Nigerian Muslim would be both challenging and rewarding. It would be challenging in the sense that he/she would have to grapple with ‘strange’ literature on the subject and then intelligibly deal with ‘strange’ questions from students among other challenges. It would be rewarding because it would widen his/her horizon and introduce him/her to new teaching techniques.

The absence of these practices would impact negatively on the understanding of Islamic law because it reduces or closes the chances of teacher–student interaction and also it does not give students any opportunity to brainstorm. An educational system that does not expose students to challenging issues would be lacking in producing manpower for a fast changing society especially in the fields of commerce and investment. The paucity of manpower must have contributed to the delayed introduction of Islamic banking in Nigeria despite the numerical strength of Muslims in the country.

The strengths of the UK teaching approach lie largely in the use of the techniques mentioned above. Teaching Islamic law in the UK would give a Nigerian teacher of the subject these important techniques to take away and try. Admittedly, trying some of these new strategies might be difficult because the teaching approach in Nigeria might be too ingrained to be changed easily. Conversely, lack of use of such techniques constitutes some of the weaknesses of the Nigerian teaching approach. This is not to suggest that the UK system does not have its weak sides. For instance, there are student habits in the UK, such as eating and drinking in the course of lectures, which could be quite distracting.

Nevertheless, on the whole, it cannot be denied that the UK approach is more in tandem with the general Islamic culture of debates and questioning. It promotes learning more than the Nigerian approach does. The Nigerian approach will greatly be improved if it adopts the UK critical posture while still maintaining due respect to the sources of Islamic law and Muslim scholars. This would bring about intellectual challenge to both teachers and students of the subject. In fact, it is the approach adopted by several Muslim jurisdictions and scholars because details of Islamic law can only be developed through the intellectual exercise of Ijtihad. Blind following of established principles at all times (Taqlid) is therefore antithetical to the law.