Preguntas

Since its inception in the seventh century, Islamic law has been skeptical of manipulative advocacy. Malik Ibn Anas (715–796), one of the four founding jurists of Islamic law, reports that two persons stood up and spoke with great eloquence. The people were stunned to hear their speeches. When this event was narrated to the Prophet, he said: “Part of eloquence is sorcery.”297 _{At another occasion, the Prophet furnished the}

example of an eloquent person who charms the people by his speech and takes away a right that belongs to a less eloquent person.298 _{This skepticism}

of eloquence expressed in the Prophet’s Sunna is consistent with the Quran’s commandments that argumentation must be most gracious.299

Thus, under the combined force of the Quran and the Sunna (the Basic Code), advocacy to defend claims, interests, and viewpoints must neither be harsh, nor sorcerous, because harsh advocacy is insulting and sorcerous advocacy is deceptive.300 _{Truthful presentation of evidence and respectful}

delivery of supportive arguments, without employing overreaching eloquence, are the prescriptive norms of advocacy under Islamic law. The most hated person in the sight of God is the most quarrelsome person.

Once the Prophet said, “You people present your cases to me and some of you may be more eloquent and persuasive in presenting their argument. So, if I give some one’s right to another (wrongly) because of the latter’s (tricky) presentation of the case, I am really giving him a piece of fire; so he should not take it.”301

This hadith clarifies three important points. First, it recognizes advocacy as a supportive mechanism for the protection of one’s rights. One may lawfully draw on persuasion to argue one’s case and to support claims. Second, it recognizes that judges may reach wrong results under the spell of advocacy. The Prophet did not even exempt himself from committing such an error. Third, and perhaps the most important, the hadith places an obligation on the winner of a lawsuit not to accept the “undeserved fruits” of his advocacy.

297. IMAM MALIK IBN ANAS, supra note 194, bk. 56, Ch. 578, No. 56.3.7. John

Milton captures this idea in the following lines: “So much of adder’s wisdom I have learned, To fence my ear against thy sorceries.” 4 JOHN MILTON, Samson Agonistes 1667–1671, in THE COMPLETE POEMS OF JOHN MILTON 414, 438 (Charles W. Eliot ed.,

Harvard Classics 1959) (1671).

298. ABU DAWUD, supra note 157, Kitab al-Adab bk. 36, No. 4994, at 1394; 3

SAHIH MUSLIM, supra note 54, Kitab al-Salat bk. 41, No. 494, at 495–96.

299. QURAN sura an-Nahl 16:125.

300. ABU DAWUD, supra note 157, Kitab al-Adab bk. 41, No. 4994, at 1394.

The hadith does not prohibit the use of advocacy. It fortifies advocacy with responsibility. In dispute resolution processes, including litigation, one may lawfully employ persuasion to make legitimate claims. However, responsible advocacy does not ask for more than its share. It is not predatory, exploitative, or acquisitive. Accordingly, judges must be aware of the pitfalls of eloquent presentations and ask themselves if they have been prejudiced by a party’s powerful presentation. This skepticism of advocacy puts judges on guard.

Most people, including judges and juries in secular and religious systems, wish to be informed. They rarely volunteer to be manipulated—particularly by persons who they believe are less informed or intellectually inferior to them. The concept of “hard sell” captures the annoyance of ordinary consumers. The example of a car dealer determined to sell a vehicle to a consumer who walks into the showroom is described as a hard sell. Marketing scientists note that hard selling is aggressive marketing that overstates a product’s merits, its bargain value, and creates a false sense of urgency to pressure consumers to not only buy the product but also the high margin add-on features.302 _{Most consumers view hard}

selling more annoying than beneficial.303 _{Ironically, though, hard sells}

create financial loss for consumers who avoid hard sellers and end up paying more for products elsewhere.304 _{Thus, hard selling may injure both}

the hard seller and the consumer as both lose each other for profitable exchanges.

Judges may have a soft corner for gentle and artistic persuasion but most would detest cynical advocacy that sells injustice. They may be skeptical of truth but they can smell lies and are repulsed. They understand manipulation and know “[t]hat one may smile, and smile, and be a villain.”305 _{Revulsions against manipulation are universal. Honest,}

decent, and courageous attorneys at peace with their internal ethics, “cultivate knowledge of the law beyond its use for clients, [and] employ that knowledge in reform of the law.”306

302. Wujin Chu, Eitan Gerstner & James D. Hess, Cost and Benefits of Hard-Sell,

32 J. MARKETING RES. 97, 97 (1995). 303. Id.

304. Id.

305. WILLIAM SHAKESPEARE, HAMLET act 1, sc. 5. 306. MODEL RULES OF PROF. CONDUCT pmbl. 5 (1983).

VIII. CONCLUSION

Reformist advocacy is part of Islamic and common law traditions. In both traditions, however, reformist advocacy has lost its way. In the United States, advocacy has turned to manipulation whereas Islamic advocacy has embraced militancy. These developments will fail to undermine these two great traditions of law, which have been in close contacts for centuries and continue to engage each other. Honest and courageous advocacy derived from profound knowledge of law and religion will reject militancy and manipulation as possible options to forge honorable exchanges between Islam and common law.