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Citation: 26 Am. J. Comp. L. 219 1977-1978

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COMPARATIVE LAW AND SOCIAL THEORY

by Richard L. Abel
Let me begin by confessing that I speak neither as an Islamicistmy knowledge of Muslim law is hopelessly superficial-nor as someone
with more than a limited familiarity with the role of Islamic law in
contemporary African legal systems. Rather, I speak as one who studies
law in society, as one who studies law as a social phenomenon.
From that starting point, let me state that I have great difficulty
with Professor Khadduri's paper. In brief, I am unable to discern what
questions are being asked. The paper consists of a general discussion of
selected legal rules pertaining to the family in a few Muslim countries,
and a limited discussion of changes that have been made in those rules
at different times. Why should we be interested in such rules? What can
we learn from them? Even if we were to take the position that knowledge of the law is an end in itself (a position I think few would seriously
support), we would still have to decide what we wanted to know about
the law.
Because this is a conference on comparative law, it would make
sense to look at that body of scholarship for a catalogue of questions to
ask, and for the reasons for asking them. But comparative law has never
satisfactorily resolved the question of how legal systems are to be
compared.1 Sometimes comparative law appears to be no more than the
study of foreign law, intended to assist persons from one country in
functioning within the legal system of another. This must be what
Professor Khadduri means when he states that "perhaps a discussion of
business law would be more useful .. ."' If the objective of comparative law is accurately to restate the rules and practices of foreign legal
systems, then the methods of comparative law are simply those of each
of the bodies of foreign law it surveys. But the knowledge thus acquired
is really no more than a translation of one nation's legal system into the
terminology of another, and is of value only to practitioners. Another
objective in acquiring knowledge of the positive law and practices of a
foreign country might be to recommend change. But this seems to me
intolerably presumptuous: what right does a foreigner have to judge the
legal system of another country according to his own values?
Professor Khadduri apparently has another objective in mind,
RICHARD L. ABEL is Professor of Law, University of California School of Law,
Los Angeles.
1. One attempt to do so, from which I have taken the title of this essay, is Hall,
ComparativeLaw and Social Theory (1963).
2. Khadduri, "Marriage in Islamic Law: The Modernist Viewpoint," supra
p. 213.

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since he asserts that "the law of marriage-indeed, of the entire law of

personal status-is more useful for giving non-Muslims a deeper understanding of Muslim society."3 This objective is identical with what I
understand to be the goal of social theory: the formulation of generalizations about human behavior. Such generalizations are relational, or
explanatory, statements in the form "if x, then y." An example of a
relational statement is, "If men have a monopoly of political power in a
society, women will be denied the right to initiate a divorce." If the
formulation of generalizations about human behavior is the goal, the
advantage-indeed the necessity-of comparison becomes clear.
Comparison, whether spatial or temporal, allows us to measure differences in the values of our variables-an essential step in formulating
and testing hypotheses.
Yet a reading of Professor Khadduri's paper reveals few explicit
generalizations, fewer still that are in relational form, and no attempt
to state them in a way that would allow them to be tested empirically.
Although it might be replied that his aim is not generalization or
explanation, but merely description of "the development of the legal
system in early Islam and . . . the complexity of social problems in
modem Islamic nations," 4 description without generalization is impossible: words are generalizations about behavior, and Professor Khadduri himself frequently speaks of national laws, which are implicit
generalizations about the behavior of millions of people. The choice is
not between description and explanation, but between implicit and
explicit explanation. It is not hard to understand why the generalizations of Professor Khadduri, and of most comparative lawyers, are
implicit. Comparative law, historically and institutionally, is an outgrowth of the study of national legal systems. Comparatists are usually
lawyers striving to describe either their own legal system to foreigners,
or a foreign legal system to their compatriots. In each case, it is difficult
to gain the critical distance necessary to perceive variation, to generalize about it, and to test the generalization. This difficulty is even more
acute when the legal system is intimately related to a major religion,
and also expresses national and supra-national feelings.
Therefore, I do not wish to appear to be hypercritical of the paper I
am discussing. But I do believe it is possible to identify some of the
implicit generalizations, to clarify them in such a way that they might
be subjected to empirical testing, and to relate them to the literature on
the social theory of law. We can discern two kinds of explanations in
Professor Khadduri's paper. In one, law is the significant behavior, and
we wish to explain why people behave that way. In the second, law is
offered as an explanation of other behavior in which we are interested. I
will discuss these in turn.
3. Id.
4. Id.

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Law may be viewed as an expression of human values or ethical

principles and, simultaneously, as an influence on those values and
principles. This appears to be what Professor Khadduri meant in writing that, with the advent of Islam, "The Shari'a. . . changed marriage
from an institution [of] male superiority. . . ."I That is, Islam held a
particular ethical view about the relation of men and women, and this
view was expressed in its law.
Although it is commonplace to say that law expresses values, the
relationship between law and values is far more complex than that
proposition acknowledges. In the first place, law is often based on
religious teachings, which are generally abstract and ambiguous, and
frequently contradictory. Professor Khadduri offers an excellent example. One passage of the Quran states, "If you fear that you will not act
with justice towards the orphans, marry such women as seem good to
you, two, three, four. . . ." (Q.IV.4). This Quranic passage would seem
to justify polygyny with up to four wives. Elsewhere, the Quran says,
"[B]ut if you fear you will not be equitable, then only one," and adds,
"you will not be able to be equitable between your wives, even though
you be eager to do so." (Q.IV.129). This passage seemingly demands
monogamy. Obviously, the sacred text can justify either rule, and
cannot "explain" which one is chosen.
Secondly, no society is homogeneous, and nations with large populations tend to be more heterogeneous than countries whose populations are smaller. In a heterogeneous nation, whose values does the law
express? Why does the law express the values of one group and not
others? In countries in which there are competing schools of Islam,
which school's traditions does the law express?
Third, what happens when new peoples are incorporated into a
society? This has occurred throughout history, expecially in the history
of Muslim peoples, who have conquered and been conquered, and who
have continuously migrated throughout the Iberian Peninsula, North
Africa, the Middle East, and parts of Asia for more than a millenium.
Surely this is relevant to the Ottoman empire, which Professor Khadduri discusses at some length.
Fourth, what happens to the relationship between ethical ideals
and positive law with the passage of time? Often they change at different tempi. Professor Khadduri gives an example of the "survival" of
positive law despite a change in religion: the payment of mahr (dower)
to the father of the bride rather than to the wife herself. Some bodies of
law may be particularly resistant to change; Professor Khadduri's essay
offers considerable evidence of the widespread belief that family law is
one such body of law. Furthermore, normative principle and positive
law can never be identical; the mere process of translating one into the
other implies change. What difference does it make whether an ideal is
5. Id.

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expressed in legislation, judicial decision, administrative decree, scholarly opinion or custom?6

These same questions can be asked about the inverse relationship:
the influence of positive law on ethical norm.7 Here the accepted wisdom is that "you can't legislate morality." Yet Professor Khadduri
offers numerous examples that require immediate qualification of this
generalization: the rules of the Quran itself; reforms of Muslim law in
the 19th and 20th centuries; and even France's imposition of civil codes
on its colonies.
Finally, what is the relationship of one system of positive law to
others? There is some evidence that legislation is "contagious." This is
evidenced by the proliferation of reforms among Muslim countries in
recent years, and by the commonplace borrowing of law, ranging from
the transfer of entire codes, as in the extreme cases of Turkey and
Ethiopia, to the copying of individual statutes or sections thereof.
Law can also be studied because it helps one in understanding
human behavior. However, if the relationship between law and values
is problematic, no one now asserts (if, in fact, anyone ever believed) that
law and behavior are, or can be, identical.8 The "gap" between the law
on the books and the law in action is always present.9 The interesting
questions, therefore, are the dimensions, the nature, the origin and the
consequences of this gap. Whose behavior conforms most closely to the
law, and whose deviates from it to the greatest extent? Are such differences based on class, socioeconomic status, religion, ethnicity or urbanrural distinctions?
I sense (and share) a growing impatience with the reiteration of
6. See Bohannan, "The Differing Realms of Law," 67 (6) (pt. 2) American
Anthropologist 33 (Special Issue 1965); Diamond, "The Rule of Law versus the
Order of Custom," 38 Social Research 42 (1971).
7. There has been considerable empirical study of this relationship, e.g., Muir,
Law and Attitude Change (1967); Colombotos, "Physicians and Medicare: A Before-After Study of the Effects of Legislation on Attitudes," 34 Am. Soc. Rev. 318
(1969); Skolnick, "Coercion to Virtue: The Enforcement of Morals," 41 So. Cal. L.
Rev. 588 (1968); Walker & Argyle, "Does Law Affect Moral Judgments?," 4 Brit. J.
Crim. 570 (1964), as well as some early theorizing, Dicey, Lectures on the Relation
between Law and Public Opinion in England During the Nineteenth Century (2d
ed. 1914).
8. There is a huge, and constantly proliferating, literature on "impact," e.g.
Becker & Feeley, eds., The Impact of Supreme Court Decisions: Empirical
Studies (2d ed. 1973); Wasby, The Impact of the United States Supreme Court:
Some Perspectives(1970); Aubert, "Some Social Functions of Legislation," 10 Acta
Sociologica 98 (1966); Dolbeare & Hammond, The School PrayerDecisions:From
Court Policy to Local Practice(1971); Nagel, ed., "Law and Social Change," 13 (4)
American Behavioral Scientist (1970); Handler, "Controlling Official Behavior in
Welfare Administration," 54 Calif.L. Rev. 479 (1966); Pound, "The Limits of Effective Legal Action," 27 Int'l J. Ethics 150 (1916); Jones, The Efficacy of Law (1969);
Wirt, Politics of Southern Equality: Law and Social Change in a Mississippi
County (1970); Sax, Defending the Environment: A Strategy for Citizen Action
(1971).

9. Abel, "Law Books and Books About Law," 26 Stan. L. Rev. 175 (1973).

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questions such as those posed above. Although law bears a relationship

to ethical precept, neither is sufficient to explain the other. Furthermore, numerous studies have demonstrated the existence of the gap
between law and behavior. Indeed, only a lawyer would see it as a
problem in the first place. What lay person would expect to find harmony between law and behavior? After all, positive law only prescribes
a small fraction of human behavior, and legal norms are insignificant
when compared with other influences on human behavior, such as
passion, ideology, greed, and ambition.
Instead, other questions strike me as being more significant: Who
favors the maintenance or change of legal rules? Who stands to gain
from insisting that rules reflect ethics? In whose interest is it that the
law be enforced, or remain unenforced? To state these questions more
concretely, let me draw examples from the reforms of Islamic law
mentioned by Professor Khuadduri. Who will benefit, and who will
lose, from limiting the number of wives that a man can have, from
regulating the right to obtain a divorce, from giving dower to the wife
rather than to her father, from requiring the consent of the parties to a
marriage, and from granting equal inheritance rights to women?
There are a number of theoretical frameworks within which these
questions can be asked. Perhaps the most familiar are interest-group
politics (in the terminology of liberal pluralism) and class conflict (in
Marxist phraseology).1" It is possible to conclude that some of the
debates over legal change described by Professor Khadduri, such as the
question of who transfers consideration to whom at the time of marriage, or who has the right to initiate a divorce, are based on conflicting
material interests. Indeed, Professor Khadduri portrays pre-Islamic
Arab custom as granting men almost unlimited power over women, and
depicts Islam as limiting that power. But this observation, if accurate, is
just the beginning of analysis: What changes in power relationships in
Muslim society produced changes in the relations between men and
women? This kind of analysis, which has led to recognition of the fact
that women have exercised significant power throughout history, is a
focal point of contemporary research in anthropology and sociology,
and is of considerable significance for the study of family law.'1 An
10. We are only now beginning to clarify these different models of norm formation. See, e.g., Tushnet, "Lumber and the Legal Process," [1972] Wis. L. Rev. 114
and "Perspectives on the Development of American Law: A Critical Review of
Friedman's 'History of American Law'," [1977] Wis. L. Rev. 81 criticizing Hurst,
Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (1964) and Friedman, A History of American Law (1973); or Horwitz,
"The Transformation in the Conception of Property in American Law, 1789-1860,"
40 U. Chi. L. Rev. 248 (1973) and The Transformationof American Law, 1780-1860
(1977).
11. Rosaldo & Lamphere, eds., Woman, Culture and Society (1974). This analy-

sis is now being done in Muslim societies, see Mernissi, Beyond the Veil: MaleFemale Dynamics in a Modern Muslim State (1975); Maher, Women and Property
in Morocco (1975).

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excellent illustration of this type of analysis is Gregory Massell's study

of the role of women as a "surrogate proletariat" in the transformation
12
of Muslim society in Soviet Central Asia.
But dividing people into classes and interest groups may not be the
most fruitful way to conceptualize the conflicts that affect the shape
and application of family law. Recognizing this, American sociologists
have developed the notions of status groups and status competition.
This approach examines history as a struggle between categories of
people, each of which is seeking to gain superior status by obtaining
official recognition of moral values to which it attaches symbolic significance. Joseph Gusfield 13 has written about the American temperance movement, which culminated in the introduction of Prohibition,
as a "symbolic crusade" in which white, Anglo-Saxon Protestants
whose forebears had immigrated to the United States from Western and
Northern Europe generations earlier-a status group whose political
and economic influence was waning-sought to oppose the growing
influence of Southern and Eastern European and Irish Catholic immigrants by criminalizing drinking, which played such an important role
in their culture. The participation of these groups of people in "criminal" activity, so the theory goes, would justify their continued exclusion
from power and wealth. Similar analyses have been offered for opposition to birth control, 4 liberalized divorce, 15 and inheritance by illegitimate children, 16 and could certainly be applied to contemporary
controversies in the United States over abortion and the Equal Rights
Amendment. I am sure that status competition between men and women, the educated and the uneducated, the young and the old, the religious and the secular partially explains the controversy over polygyny
in contemporary Muslim societies.
A last theoretical approach, related to the one outlined above,
views the formulation and application of norms as "symbolic politics."' 7 The official declaration of norms is a means of legitimizing the
state, through an appeal to tradition, modernity, or some other value. It
is widely known that the norms will never be applied in practiceArthur Schiller calls them "fantasy law."' 18 Indeed, great care is often
12. Massell, SurrogateProletariat:Moslem Women and Revolutionary Strategies in Soviet CentralAsia, 1919-1929 (1974) and "Law as an Instrument of Revolutionary Change in a Traditional Milieu: The Case of Soviet Central Asia," 2 Law &

Soc'y Rev. 179 (1968).

13. Gusfield, Symbolic Crusade: Status Politics and the Temperance Movement (1963).
14. Dienes, Law, Politics,and Birth Control (1972).
15. Blake, The Road to Reno: A History of Divorce in the United States (1962);
O'Neill, Divorce in the Progressive Era (1967); Rheinstein, Marriage Stability,
Divorce and the Law (1972).

16. Harrell-Bond, "Legitimacy and the Politics of Status: An Abortive Legislative Change in Sierra Leone," 12 African Law Studies 21 (1975).
17. Edelman, The Symbolic Uses of Politics (1964); Scheingold, The Politicsof
Rights: Lawyers, Public Policy and Political Change (1974).

18. Schiller, "Law" in Lystad, ed., The African World: A Survey of Social
Research (1965).

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taken to see that they cannot be applied, for instance, by publishing

them where no one but lawyers will read them, or in a language understood by very few, 9 or allowing only the elite access to institutions that
enforce the law. One of the best examples of symbolic politics is a
statute passed by a Central American nation for the control of atomic
energy. The statute was enacted by legislators with full knowledge that
the country had no atomic energy to control nor a prospect of ever
getting any. The legislators' apparent motive was to place their country
on record as being against the unregulated use of atomic energy.
Symbolic politics are one cause of legislative epidemics: statutes
are enacted merely for the purpose of competing with other nations.
Symbolic politics also helps to explain the uniform laws movement in
the United States, and the fact that a jurisdiction often insists on
modifying the law slightly before passage, as an expression of individuality, thereby subverting the ostensible objective of uniformity.
Constitution-making is a notorious form of symbolic politics,
which suggests why constitutions are rewritten so often. Judicial reform is also highly symbolic, if less obviously so. African nations have
restructured their judiciaries in order to "modernize" them (Kenya),
"traditionalize" them (Malawi, Rhodesia), or render them consonant
with African socialism (Tanzania, Ethiopia).
Family law may be a form of symbolic politics. The repugnancy
rules-universal in colonial Africa-by which indigenous custom was
invalidated if it violated European conceptions of "natural justice,
equity, and good conscience," symbolically declared the superiority of
the colonial power, as well as its devotion to the cause of "civilizing"
African peoples. Judges and legislators in contemporary Africa are not
above making similar declarations, such as when they declare that the
custom of widow inheritance is "barbaric, ' 20 or that a widow may not
provide brideprice to "marry" a woman in the name of her deceased
husband. 21 The Ivory Coast passed a law severely restricting the amount
of money that could be spent on funerals, which had traditionally been
extremely lavish. However, when the mother of President HouphouetBoigny died a month later, the law was blithely ignored: the nation
witnessed the most lavish funeral in its history. Several African nations, shortly after independence, "abolished" polygyny; others eliminated or limited the paying of a brideprice. 22 Nor are such phenomena
restricted to Africa. After the abolition of polygyny in Turkey it became
19. Mundt, "Internationalization of Law in a Developing Country: The Ivory
Coast's Civil Code," 12 African Law Studies 60 (1975).
20. Ameh, "The Inheritance of Widows in an African Society: Crisis or Change
in Customary Law?", 15 African Law Studies (forthcoming).
21. Akpamgbo, "A 'Woman to Woman' Marriage and the Repugnancy Clause:
A Case of Putting New Wine into Old Bottles," 14 African Law Studies 87 (1977).
22. Salacuse, An Introduction to Law in French-Speaking Africa (1969);
Stibich, "Family Law in Some English-Speaking African States," 2 African Law
Studies 49 (1969).

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necessary to pass special laws every five or ten years to legitimate all
the children born of unlawful plural marriages.23 When Turkey passed a
law raising the minimum age for marriage, the single most common
legal action became the filing of a petition to "correct" the date of birth
on a birth certificate.24 I suspect that laws in modern Muslim countries
mandating a woman's consent to her marriage, granting women the
right to divorce, or abolishing or limiting polygyny, are "symbolic"
reforms of the same kind.
Once it has been determined that laws are only symbolic interesting
questions follow: to whom are these symbolic statements directed? Do
they legitimate or delegitimate the opposition? Under what circumstances, if any, could a person or group take advantage of the political
leverage that such symbolic changes inadvertently give them?
Stability and change in family law in contemporary Muslim nations provide a basis for answering some of these fascinating questions.
To do so, however, we must leave the exegesis of legal doctrine to the
practitioners in each national legal system. Instead we must structure
our inquiry in accordance with the canons of social theory, employing
our extensive knowledge of human behavior.
23. Timur, "Civil Marriage in Turkey: Difficulties, Causes and Remedies," 9
Int'l Soc. Sci. Bull. 34 (1957).
24. Velidedeoglu, "The Reception of the Swiss Civil Code in Turkey," 9 Int'l
Soc. Sci. Bull. 60 (1957); see generally Starr & Pool, "The Impact of a Legal
Revolution in Rural Turkey," 8 Law & Soc'y Rev. 533 (1974).

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