Faith and the attorney-client relationship: A muslim perspective

Fordham Law Review

Volumn 66, Issue 4, 1998, Pages 1131-1140

  Al Hibri, Azizah Y ^a,b,c  

^a UNIVERSITY OF RICHMOND   (United States)

^b Advisory Board   (United States)

^c Karamah: Muslim Women Lawyers Hum ^*

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[No Author keywords available]

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EID: 0032369865     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (66)

1. See, e.g., Stephen L. Carter, The Culture of Disbelief (1993) (arguing that by overemphasizing the need to maintain division between religion and politics, American society has caused the religiously faithful to act as though their faith means little to them); Richard John Neuhaus, The Naked Public Square (1984) (discussing how it is both impossible and undesirable to maintain a public democratic forum devoid of religion).
2. See, e.g., Stephen L. Carter, The Culture of Disbelief (1993) (arguing that by overemphasizing the need to maintain division between religion and politics, American society has caused the religiously faithful to act as though their faith means little to them); Richard John Neuhaus, The Naked Public Square (1984) (discussing how it is both impossible and undesirable to maintain a public democratic forum devoid of religion).
3. See U.S. Const. amend. I; see also Everson v. Board of Educ. of Ewing Township, 330 U.S. 1, 8-16 (1947) (discussing the historical events that led the Founding Fathers to adopt the First Amendment's protection of religion).
4. See The Random House Dictionary of the English Language 1731 (2d ed. 1987) (listing definitions of "secular" through "secularize"). According to this dictionary, the primary meaning of "secularism" is "a system of political or social philosophy that rejects all forms of religious faith and worship." Id. (emphasis added). The now secondary meaning is "the view that public education and other matters of civil policy should be conducted without the introduction of a religious element." Id.
5. See supra note 3.
6. Seyyed Hossein Nasr, Contemporary Western man between the rim and the axis, in Technology and Human Affairs 354, 356 (Larry Hickman & Azizah al-Hibri eds., 1981).
7. For an excellent source, see Special Issue, Feminism and Science II, 3 Hypatia (Nancy Tuana ed., 1988), especially Nancy Tuana's Introduction which states: By practicing the scientific method, scientists are believed to be detached from their personal motives or expectations and simply report facts. Given this model of science, the idea that knowledge or reason could be gendered was nonsense. Feminists, in company with other theorists, have rejected this image of science. Science is a cultural institution and as such is structured by the political, social, and economic values of the culture within which it is practiced. Id. at 2. See also Ruth Bleier's book, Science and Gender: A Critique of Biology and Its Theories on Women (1984), especially pages 195-97, where she argues that the concept of "scientific objectivity" has traditionally been defined by males, and is, therefore, not truly objective.
8. For an excellent source, see Special Issue, Feminism and Science II, 3 Hypatia (Nancy Tuana ed., 1988), especially Nancy Tuana's Introduction which states: By practicing the scientific method, scientists are believed to be detached from their personal motives or expectations and simply report facts. Given this model of science, the idea that knowledge or reason could be gendered was nonsense. Feminists, in company with other theorists, have rejected this image of science. Science is a cultural institution and as such is structured by the political, social, and economic values of the culture within which it is practiced. Id. at 2. See also Ruth Bleier's book, Science and Gender: A Critique of Biology and Its Theories on Women (1984), especially pages 195-97, where she argues that the concept of "scientific objectivity" has traditionally been defined by males, and is, therefore, not truly objective.
9. For an excellent source, see Special Issue, Feminism and Science II, 3 Hypatia (Nancy Tuana ed., 1988), especially Nancy Tuana's Introduction which states: By practicing the scientific method, scientists are believed to be detached from their personal motives or expectations and simply report facts. Given this model of science, the idea that knowledge or reason could be gendered was nonsense. Feminists, in company with other theorists, have rejected this image of science. Science is a cultural institution and as such is structured by the political, social, and economic values of the culture within which it is practiced. Id. at 2. See also Ruth Bleier's book, Science and Gender: A Critique of Biology and Its Theories on Women (1984), especially pages 195-97, where she argues that the concept of "scientific objectivity" has traditionally been defined by males, and is, therefore, not truly objective.
10. See, e.g., Thomas S. Kuhn, The Structure of Scientific Revolutions passim (2d ed. 1970) (arguing that the historical development of science reveals tendencies to deemphasize the subjective nature of science); Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy 3 (1958) ("Any attempt rigorously to eliminate our human perspective from our picture of the world must lead to absurdity."); Israel Scheffler, Science and Subjectivity 8 (1967) (questioning whether scientific objectivity is possible).
11. See, e.g., Thomas S. Kuhn, The Structure of Scientific Revolutions passim (2d ed. 1970) (arguing that the historical development of science reveals tendencies to deemphasize the subjective nature of science); Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy 3 (1958) ("Any attempt rigorously to eliminate our human perspective from our picture of the world must lead to absurdity."); Israel Scheffler, Science and Subjectivity 8 (1967) (questioning whether scientific objectivity is possible).
12. See, e.g., Thomas S. Kuhn, The Structure of Scientific Revolutions passim (2d ed. 1970) (arguing that the historical development of science reveals tendencies to deemphasize the subjective nature of science); Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy 3 (1958) ("Any attempt rigorously to eliminate our human perspective from our picture of the world must lead to absurdity."); Israel Scheffler, Science and Subjectivity 8 (1967) (questioning whether scientific objectivity is possible).
13. See, e.g., David G. Warren, Complementary Medicine and the Law, 18 J. Legal Med. 257 (1997) (reviewing Julie Stone and Joan Matthews, Complementary Medicine and the Law (1996)) (discussing the strict regulation of conventional medicine in this country, and the growing acceptance of "alternative" medicine). For a list of internet links to holistic medicine websites, see Holistic Medicine Links (visited Jan. 17, 1998) 〈http://www.duke.edu/~sjkmdphd/holistic.html〉.
14. See, e.g., David G. Warren, Complementary Medicine and the Law, 18 J. Legal Med. 257 (1997) (reviewing Julie Stone and Joan Matthews, Complementary Medicine and the Law (1996)) (discussing the strict regulation of conventional medicine in this country, and the growing acceptance of "alternative" medicine). For a list of internet links to holistic medicine websites, see Holistic Medicine Links (visited Jan. 17, 1998) 〈http://www.duke.edu/~sjkmdphd/holistic.html〉.
15. See, e.g., David G. Warren, Complementary Medicine and the Law, 18 J. Legal Med. 257 (1997) (reviewing Julie Stone and Joan Matthews, Complementary Medicine and the Law (1996)) (discussing the strict regulation of conventional medicine in this country, and the growing acceptance of "alternative" medicine). For a list of internet links to holistic medicine websites, see Holistic Medicine Links (visited Jan. 17, 1998) 〈http://www.duke.edu/~sjkmdphd/holistic.html〉.
16. See, e.g., Kate Millett, Sexual Politics 59-127 (1970) (documenting the history of the sexual revolution); Robin Morgan, The Anatomy of Freedom: Feminism, Physics, and Global Politics 296-301 (1982) (discussing how the revelation that the "personal is political" will (or should) affect women's lives); Mary O'Brien, The Politics of Reproduction 93-115 (1981) (arguing that a separation between public and private is possible only in theory).
17. See, e.g., Kate Millett, Sexual Politics 59-127 (1970) (documenting the history of the sexual revolution); Robin Morgan, The Anatomy of Freedom: Feminism, Physics, and Global Politics 296-301 (1982) (discussing how the revelation that the "personal is political" will (or should) affect women's lives); Mary O'Brien, The Politics of Reproduction 93-115 (1981) (arguing that a separation between public and private is possible only in theory).
18. See, e.g., Kate Millett, Sexual Politics 59-127 (1970) (documenting the history of the sexual revolution); Robin Morgan, The Anatomy of Freedom: Feminism, Physics, and Global Politics 296-301 (1982) (discussing how the revelation that the "personal is political" will (or should) affect women's lives); Mary O'Brien, The Politics of Reproduction 93-115 (1981) (arguing that a separation between public and private is possible only in theory).
19. See supra note 5 and accompanying text.
20. The other part asserts that Prophet Muhammad is the Prophet of God. In rough translation, shahadah means there is no God but Allah, and Muhammad is His prophet.
21. "Sufism" is Islamic mysticism. For more on sufism, see for example, Martin Lings, What is Sufism? 11-16 (1975) (discussing the history and doctrine of sufism).
22. For an in-depth discussion of this point, see Seyyed Hossein Nasr, An Introduction to Islamic Cosmological Doctrines 3-7, 10 (1964). Nasr cautions that this sufi view is not to be confused with pantheism, since it is balanced by the central doctrine of the transcendence of God. Id. at 5, 10.
23. For an in-depth discussion of this point, see Seyyed Hossein Nasr, An Introduction to Islamic Cosmological Doctrines 3-7, 10 (1964). Nasr cautions that this sufi view is not to be confused with pantheism, since it is balanced by the central doctrine of the transcendence of God. Id. at 5, 10.
24. See, e.g., Qur'an 2:164, 3:190, 6:99,10:5,13:3,16:66-69. Where English transla-tions are used in this article, I relied primarily on the translation of A. Yusuf Ali, The Holy Qur'an: Translation and Commentary (1938). I have modified this translation in certain cases to make it more precise.
25. See, e.g., Qur'an 6:95-99, 10:5, 36:38-40, 55:1-8.
26. See, e.g., Qur'an 2:242, 6:97-98, 16:11-12, 22:46, 29:43-44, 45:13.
27. See, e.g., Qur'an 3:191, 10:24, 16:69, 29:20, 88:17-20.
28. See, e.g., 3 Marshall G. S. Hodgson, The Venture of Islam 165-75 (1974) (chronicling important historical advances made by Islamic societies); see also Seyyed Hossein Nasr, Science and Civilization in Islam (1968) (presenting various aspects of the scientific history of Islamic societies, from the Islamic perspective).
29. See, e.g., 3 Marshall G. S. Hodgson, The Venture of Islam 165-75 (1974) (chronicling important historical advances made by Islamic societies); see also Seyyed Hossein Nasr, Science and Civilization in Islam (1968) (presenting various aspects of the scientific history of Islamic societies, from the Islamic perspective).
30. See supra note 9.
31. See, e.g., Qur'an 4:1, 6:98, 7:189, 31:28, 39:6.
32. Qur'an 49:13.
33. See, e.g., Qur'an 2:188-189; 2:282; 3:130; 4:7, 32; 6:151-153. For further discussion of this point, see my articles Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. U. J. Int'l L. & Pol'y 1 (1997) [hereinafter Islam, Law and Custom], and Islamic Constitutionalism and the Concept of Democracy, 24 Case W. Res. J. Int'l L. 1 (1992).
34. See, e.g., Qur'an 2:188-189; 2:282; 3:130; 4:7, 32; 6:151-153. For further discussion of this point, see my articles Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. U. J. Int'l L. & Pol'y 1 (1997) [hereinafter Islam, Law and Custom], and Islamic Constitutionalism and the Concept of Democracy, 24 Case W. Res. J. Int'l L. 1 (1992).
35. One of the best recent discussions of the rights of Muslim women is provided by Abdul Halim Abu Shuqqah, Tahrir al-Mar'ah fi Asr al-Risalah (Liberating Woman in the Era of Revelation [Early Islam]), 6 vol. (1990-1994). See also Abdul Rahman al-Jaziri, Kitab al-Fiqh (The Book of Jurisprudence), 5 vol. (1969). But see Islam, Law and Custom, supra note 22, at 24-25 (critiquing some patriarchal juristic interpretations of the Qur'an).
36. One of the best recent discussions of the rights of Muslim women is provided by Abdul Halim Abu Shuqqah, Tahrir al-Mar'ah fi Asr al-Risalah (Liberating Woman in the Era of Revelation [Early Islam]), 6 vol. (1990-1994). See also Abdul Rahman al-Jaziri, Kitab al-Fiqh (The Book of Jurisprudence), 5 vol. (1969). But see Islam, Law and Custom, supra note 22, at 24-25 (critiquing some patriarchal juristic interpretations of the Qur'an).
37. One of the best recent discussions of the rights of Muslim women is provided by Abdul Halim Abu Shuqqah, Tahrir al-Mar'ah fi Asr al-Risalah (Liberating Woman in the Era of Revelation [Early Islam]), 6 vol. (1990-1994). See also Abdul Rahman al-Jaziri, Kitab al-Fiqh (The Book of Jurisprudence), 5 vol. (1969). But see Islam, Law and Custom, supra note 22, at 24-25 (critiquing some patriarchal juristic interpretations of the Qur'an).
38. These rights are based on Qur'anic passages. For example, the right to be well-treated rests on such Qur'anic verses as 2:231 and 30:21. The related jurisprudence is reflected in the personal status codes of various Muslim countries. In Jordan, for example, not only physical, but even verbal abuse is grounds for divorce. Islam, Law and Custom, supra note 22, at 13 n.58. Other types of redress are also possible in case of harm under the Islamic principle of Qisas, briefly described as the principle of "an eye for an eye." I have discussed the Islamic jurisprudence on this principle in another context in The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723, 1726-30 (1996), and indicated how it is balanced with other principles, such as that of forgiveness. The rights to maintenance and to inheritance are based on Qur'anic verses such as 4:7 and 4:32. Other rights also have firm Qur'anic foundation and juristic elaborations, such as the right to education and the right to participate in political and religious discourse, Islam, Law and Custom, supra note 22, at 38-42, and the right to work, Farida Bennani, Taqsim al-'Amal Bayn al-Zawjain (Division of Labor Between Spouses) (1992). Unfortunately, in the last few centuries, where cultural norms conflicted with these rights, patriarchal societies opted for cultural norms that perpetrated male privilege. See Islam, Law and Custom, supra note 22, passim.
39. These rights are based on Qur'anic passages. For example, the right to be well-treated rests on such Qur'anic verses as 2:231 and 30:21. The related jurisprudence is reflected in the personal status codes of various Muslim countries. In Jordan, for example, not only physical, but even verbal abuse is grounds for divorce. Islam, Law and Custom, supra note 22, at 13 n.58. Other types of redress are also possible in case of harm under the Islamic principle of Qisas, briefly described as the principle of "an eye for an eye." I have discussed the Islamic jurisprudence on this principle in another context in The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723, 1726-30 (1996), and indicated how it is balanced with other principles, such as that of forgiveness. The rights to maintenance and to inheritance are based on Qur'anic verses such as 4:7 and 4:32. Other rights also have firm Qur'anic foundation and juristic elaborations, such as the right to education and the right to participate in political and religious discourse, Islam, Law and Custom, supra note 22, at 38-42, and the right to work, Farida Bennani, Taqsim al-'Amal Bayn al-Zawjain (Division of Labor Between Spouses) (1992). Unfortunately, in the last few centuries, where cultural norms conflicted with these rights, patriarchal societies opted for cultural norms that perpetrated male privilege. See Islam, Law and Custom, supra note 22, passim.
40. These rights are based on Qur'anic passages. For example, the right to be well-treated rests on such Qur'anic verses as 2:231 and 30:21. The related jurisprudence is reflected in the personal status codes of various Muslim countries. In Jordan, for example, not only physical, but even verbal abuse is grounds for divorce. Islam, Law and Custom, supra note 22, at 13 n.58. Other types of redress are also possible in case of harm under the Islamic principle of Qisas, briefly described as the principle of "an eye for an eye." I have discussed the Islamic jurisprudence on this principle in another context in The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723, 1726-30 (1996), and indicated how it is balanced with other principles, such as that of forgiveness. The rights to maintenance and to inheritance are based on Qur'anic verses such as 4:7 and 4:32. Other rights also have firm Qur'anic foundation and juristic elaborations, such as the right to education and the right to participate in political and religious discourse, Islam, Law and Custom, supra note 22, at 38-42, and the right to work, Farida Bennani, Taqsim al-'Amal Bayn al-Zawjain (Division of Labor Between Spouses) (1992). Unfortunately, in the last few centuries, where cultural norms conflicted with these rights, patriarchal societies opted for cultural norms that perpetrated male privilege. See Islam, Law and Custom, supra note 22, passim.
41. These rights are based on Qur'anic passages. For example, the right to be well-treated rests on such Qur'anic verses as 2:231 and 30:21. The related jurisprudence is reflected in the personal status codes of various Muslim countries. In Jordan, for example, not only physical, but even verbal abuse is grounds for divorce. Islam, Law and Custom, supra note 22, at 13 n.58. Other types of redress are also possible in case of harm under the Islamic principle of Qisas, briefly described as the principle of "an eye for an eye." I have discussed the Islamic jurisprudence on this principle in another context in The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723, 1726-30 (1996), and indicated how it is balanced with other principles, such as that of forgiveness. The rights to maintenance and to inheritance are based on Qur'anic verses such as 4:7 and 4:32. Other rights also have firm Qur'anic foundation and juristic elaborations, such as the right to education and the right to participate in political and religious discourse, Islam, Law and Custom, supra note 22, at 38-42, and the right to work, Farida Bennani, Taqsim al-'Amal Bayn al-Zawjain (Division of Labor Between Spouses) (1992). Unfortunately, in the last few centuries, where cultural norms conflicted with these rights, patriarchal societies opted for cultural norms that perpetrated male privilege. See Islam, Law and Custom, supra note 22, passim.
42. These rights are based on Qur'anic passages. For example, the right to be well-treated rests on such Qur'anic verses as 2:231 and 30:21. The related jurisprudence is reflected in the personal status codes of various Muslim countries. In Jordan, for example, not only physical, but even verbal abuse is grounds for divorce. Islam, Law and Custom, supra note 22, at 13 n.58. Other types of redress are also possible in case of harm under the Islamic principle of Qisas, briefly described as the principle of "an eye for an eye." I have discussed the Islamic jurisprudence on this principle in another context in The Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723, 1726-30 (1996), and indicated how it is balanced with other principles, such as that of forgiveness. The rights to maintenance and to inheritance are based on Qur'anic verses such as 4:7 and 4:32. Other rights also have firm Qur'anic foundation and juristic elaborations, such as the right to education and the right to participate in political and religious discourse, Islam, Law and Custom, supra note 22, at 38-42, and the right to work, Farida Bennani, Taqsim al-'Amal Bayn al-Zawjain (Division of Labor Between Spouses) (1992). Unfortunately, in the last few centuries, where cultural norms conflicted with these rights, patriarchal societies opted for cultural norms that perpetrated male privilege. See Islam, Law and Custom, supra note 22, passim.
43. See, e.g., Qur'an 2:189, 24:27, 24:29.
44. See, e.g., Qur'an 4:135, 5:8, 6:90, 6:152-153, 7:33.
45. See, e.g., Qur'an 3:159, 14:24-26, 17:80, 31:18, 33:35.
46. See, e.g., Qur'an 5:2, 16:90, 26:183, 28:77, 42:42, 58:9.
47. See, e.g., Qur'an 4:8, 4:127, 6:152, 93:9, 107:1-2.
48. See, e.g., Qur'an 2:283, 4:135, 5:8, 5:106.
49. See, e.g., Qur'an 5:1, 17:34, 23:8, 70:32.
50. See, e.g., Qur'an 4:58, 4:135, 5:8, 6:152, 7:29, 26:181-182.
51. See Marshall McLuhan, Understanding Media 4, 11-12, 85 (1995); Azizah al-Hibri, The American Corporation in the Twenty-First Century: Future Forms of Structure and Governance, 31 U. Rich. L. Rev. (forthcoming 1998) (manuscript at 14-27, on file with author).
52. See Marshall McLuhan, Understanding Media 4, 11-12, 85 (1995); Azizah al-Hibri, The American Corporation in the Twenty-First Century: Future Forms of Structure and Governance, 31 U. Rich. L. Rev. (forthcoming 1998) (manuscript at 14-27, on file with author).
53. Joseph Allegretti, Lawyers, Clients, and Covenant: A Religious Perspective on Legal Practice and Ethics, 66 Fordham L. Rev. 1101, 1112-15 (1998).
54. Id. at 1116.
55. Allegretti makes clear at the end of his article that he is not calling for the abandonment of contracts. He says, "The contract model establishes the bottom line of the relationship." Id. at 1128.
56. He adds later that "[t]he choice, then, is not between contract or covenant. Covenant builds upon and enlarges contract." Id.
57. See McLuhan, supra note 33, at 4-5; al-Hibri, supra note 33 (manuscript at 3-10, on file with author).
58. See McLuhan, supra note 33, at 4-5; al-Hibri, supra note 33 (manuscript at 3-10, on file with author).
59. The term "surplus repression" is borrowed from Herbert Marcuse, Eros & Civilization: A Philosophical Inquiry into Freud 35, 88 (1966). In that work, however, "surplus repression" refers to society's repression of Eros (the life instincts) in the interest of domination. Id. at 35. In this article, the term refers to society's repression of Spirituality (the soul instincts) in the interest of domination.
60. The term "surplus repression" is borrowed from Herbert Marcuse, Eros & Civilization: A Philosophical Inquiry into Freud 35, 88 (1966). In that work, however, "surplus repression" refers to society's repression of Eros (the life instincts) in the interest of domination. Id. at 35. In this article, the term refers to society's repression of Spirituality (the soul instincts) in the interest of domination.
61. See supra note 2.
62. Notice that to achieve this type of relationship with the client and divulge this sort of information to him, the lawyer will have to modify her views on privacy.
63. Allegretti, supra note 34, at 1119 (stating that the lawyer and client, under the covenant approach, share a moral community and hence have responsibilities to and for each other that go beyond the "letter of the law").
64. Id.
65. Id. at 1120.
66. Concerned lawyers have also addressed the issues raised by Allegretti from the perspective of the Ethics of Care. See, e.g., Paul J. Zwier & Ann B. Hamric, The Ethics of Care and ReImagining the Lawyer/Client Relationship, 22 J. Contemp. L. 383 (1996).