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Legal pragmatism and the Shari’a: Avoiding an impossible question.

INTRODUCTION

For legal pragmatists such as Richard Posner, the theoretical labels of legalism and skepticism are conspicuously unhelpful in explaining judicial decision making.[1] Doing away with such unfruitful and baseless jurisprudential debates, he argues, opens the door for legal pragmatism, a jurisprudential approach that focuses on how objectivity in judicial decision making can be construed as a relationship between judicial decisions and social fact rather than metaphysical essence.

This paper tests Posner’s legal pragmatism by applying it to the role of the Islamic Shari’a in the constitution of the United Arab Emirates. Whilst I consider the extent to which pragmatism offers a sustainable account of constitutional interpretation in nations negotiating the constitutional role of the Islamic Shari’a, the central objective of this discussion is to test pragmatism itself. Consideration of the Shari’a in the UAE demonstrates the potential limitations of pragmatism, but more importantly, highlights the benefits that its unique jurisprudential approach makes available.

This discussion is structured in four parts. Initially, I outline Posner specific vision of legal pragmatism and the role he sees for an economic methodology. Secondly, this pragmatic approach is shown to explain the UAE Supreme Court’s treatment of banking interest legislation which ostensibly contravenes Shari’a requirements. In the third stage of the argument, I consider contentions raised by Amartya Sen and Martha Nussbaum which suggest that economic pragmatism is unsuited to understanding the constitutional status of the Shari’a. In the final part of this paper I consider a second Supreme Court case which poses a greater explanatory challenge for economic pragmatism. Suggesting how this challenge might be met, I also indicate how the pragmatic focus on empirical consequentialism averts the more perplexing dilemmas of constitutional interpretation.

ECONOMIC PRAGMATISM

The Problems of Jurisprudence[2] outlines Richard Posner argument for legal pragmatism, a jurisprudential approach which construes legal questions within a consequentialist framework.[3] Suggesting that pragmatism allows judges to dispense with paralysing interpretative deadlocks by focusing on empirical rather than theoretical questions, Posner depicts “a functional, policy-saturated, nonlegalistic, naturalistic, and skeptical, but decidedly not cynical, conception of the legal process; in a word… a pragmatic jurisprudence.”[4] This section details how Posner’s activity theory of law embeds legal decision making within its sociological context without abandoning the normative force of an objective standpoint.

i. The activity theory of law

Posner identifies that the normative force of law flows from its claim to objectivity.[5] The pragmatic arguments made by James,[6] Dewey[7] and Peirce against the fact/value distinction, however, problematise the idea that objectivity could be of an ontological grade.[8] Legal objectivity, Posner argues, must acknowledge that law has a social genesis:[9] “Legal theory cannot be made objective by being placed in correspondence with the “real” world. It owes whatever objectivity it has to a cultural uniformity rather than to metaphysical reality or methodological rigor [sic].”[10] This realisation compels Posner to reject both the essentialist claim that it is necessary to treat law as a ‘set of rules’ and the corollary assumption that legal reasoning is different from everyday reasoning. Rather, he suggests that law is better viewed as the activity of making legal decisions.[11]

On this view, statutes and constitutional provisions do not have any essence to be discerned. Instead, the judiciary encounters them as commands emanating from the legislature whose normativity flows from their status as the negotiated product of a society coming to terms with its own preferred commitments.[12] As such, difficult cases of interpretation do not involve using the purportedly special tools of legal analysis to ‘translate’ provisions to fit novel facts, but dealing with ‘gaps’ – places where commands simply run out. Interpretation is a process of completion rather than translation.[13] In negotiating these gaps, however, what objective standard can judges draw upon? After all, without objective credentials the judiciary’s claim to legitimacy is also called into question.

Whilst he may not think that objectivity of an ontological or epistemic grade is available, Posner nevertheless thinks that “conversational objectivity”[14] remains on the table. Conversational objectivity flows from justifying decisions on the basis that they are well suited to procure ends which are socially valued; objectives which attract social consensus. By assessing the empirical consequences of resolving legal questions in alternate ways, judges can adjudicate otherwise indeterminate by asking – as an empirical question – which option would best further social interests.[15]

ii. The domain of economics

But does this just defer the question of what normative principles underlie judicial reasoning? After all, what count as valuable ends? Despite wide divergence over social conceptions of the ‘good’, Posner suggests a broad social consensus on the desirability of “wealth maximisation.”[16] Economic cost-benefit analysis, he argues, is therefore the consequentialist tool most appropriate to judicial decision making. Human goals, though, are not exclusively pecuniary, and Posner notes that the economic reduction of human beings to self-interest maximising agents oversimplifies the complexity of human psychology and socialisation.[17] Wealth, for Posner, is therefore an expansive notion – closer to ‘well-being’ than ‘rich’ – and economics is not solely suited to explaining market behaviour.[18] Rather, on Posner’s antiessentialist understanding of the concept which rejects the “fallacy that economics has a fixed domain,”[19] economics explains interactions among the diverse coterie of human preferences – not just pecuniary ones.

On this model, economic tools quantify the broad range of human interests and desires involved in difficult legal questions, placing them within an evaluative framework which identifies both the best resolution and an explicit justification based on social consensus. Economic pragmatism thereby offers an empirical strategy for dealing with the legal problems of the present in an objective manner. As such, Posner sees economic pragmatism as the means by which distracting and unresolvable debates over the intrinsic meaning of constitutional provisions might be dispensed with as irrelevant to the actual process of deciding difficult legal cases.

THE SHARI’A CONTROVERSY IN THE UAE

One such seeming intractable question of interpretation is in the United Arab Emirates, where the Federal Supreme Court has exhibited palpable consternation over how to apply Article 7 of the UAE Constitution. In this part of the paper I apply Posner’s economic pragmatic approach to a controversial Supreme Court decision involving banking interest, demonstrating how consequentialist economics provides the conceptual resources to both explain and buttress the decision. As a preparatory matter, however, it is necessary to outline the controversy over Article 7.

Article 7 of the UAE Constitution (the Shari’a Clause) pronounces on the place of the Islamic Shari’a within the state legal system:

Islam is the official religion of the Union. The Islamic Shari’a shall be a main source of legislation in the Union.

Despite the ostensible primacy this Shari’a Clause confers upon the Shari’a as a source of legislation within the UAE, the ambiguous use of the word “a” has given rise to confusion as to its meaning.[20] The ensuing debate can be separated into two groups – the Islamists and the Liberals[21] – whose conflicting interpretations of the position of the Shari’a within the UAE Constitution belies a deeper consternation in the Islamic world over the secularisation of state legal systems.[22] Whilst the Liberal camp argues that the force of the Shari’a Clause makes the Islamic Shari’a a mandatory but non-exclusive source of legislation, the Islamists maintain that the Article expresses clear preference for the Shari’a as a main source of legislation.[23]

The Junatta Bank Case

In the Junatta Bank Case, the meaning of the Shari’a Clause was considered by the Constitutional Chamber of the Supreme Court in relation to Articles 61 and 62 of the Abu Dhabi Law of Civil Procedures (Local Law No. 3/1970). The court was asked to rule on the constitutionality of these articles since they allowed for the imposition of banking interest, or riba, which is explicitly prohibited by the Shari’a.[24] Although the case ostensibly called for determination of the meaning of the Shari’a Clause, in upholding the constitutionality of the Abu Dhabi legislation the Supreme Court made no such pronouncement. Instead, it disavowed any responsibility to decide on that point, maintaining that the “speed and form of… federal legislation, especially regarding Islamic Shari’a rules, is a matter of policy which is not for the judiciary to decide.”[25]

This argument, however, could very well be legally incorrect. Al-Muhairi notes that the Supreme Court argument that the Shari’a Clause is a matter of policy is highly dubitable, given that it runs counter to Article 75 of UAE Federal Law No.10/1973 and Article 8 of UAE Federal Law No.6/1978, which provide that the application of Shari’a is a matter for judicial consideration.[26] In light of this, the Supreme Court’s decision in the Junatta Bank Case countenances two acute dangers. Firstly, the court’s failure to articulate a persuasive line of reasoning endangers its ongoing institutional credibility and authority.[27] Secondly, the lack of compelling justification undermines the legitimacy of the decision itself, fanning concerns about predictability in future cases.[28]

Economic pragmatism and the UAE Supreme Court

Recall Posner’s argument that economic pragmatism helps circumvent jurisprudential deadlock by focusing on the empirical consequences of decisions. On this account, judicial legitimacy is best preserved by making explicit how a particular decision maximises wealth, not by purporting to divine the essence of laws. So how could economic pragmatism have assisted the Supreme Court give a stronger decision in the Junatta Bank Case? Would it really make the polarising debate over the Shari’a Clause seem beside the point?

Treating the interpretation of the Shari’a Clause as a question of completion, economic pragmatism forces us to consider it in light of the empirical consequences of the decision. Given that the clause itself is indeterminate, the pragmatist asks which interpretative option would more effectively maximise Emirati wealth. Empirically speaking, is it better that the Shari’a Clause be construed so as to render Articles 61 and 62 unconstitutional, or that banking interest be allowed? Given the role of the commercial banking sector in enticing foreign direct investment in the UAE economy, it is clear that there is a strong economic imperative to which the Supreme Court could invoke in justifying its decision.

Indeed, it seems that the economic pragmatism provides an explicit and compelling rationale for the Junatta Bank decision, and one which also comports well with the factors that actually influenced the decision. Al-Muhairi observes that lower court decisions criminalising banking interest created a banking crisis in which large numbers of debtors defaulted.[29] Against this backdrop, the Supreme Court decision was seemingly prompted by the need to reassure the commercial banking sector and counteract threats to the orderly economic development of the Union.[30]

By applying pragmatism in this way the relevant question is no longer what is required by the Shari’a Clause, but rather which result within the parameters it establishes is most beneficial. Moreover, the criticisms of the Junatta Bank decision outlined earlier do not even arise. In this manner, economic pragmatism is able to offer a compelling justification for the Junatta Bank decision by substituting an empirical analysis for a theoretical one, thus alleviating the institutional concerns that otherwise arise.

LIMITS OF ECONOMIC PRAGMATISM

But is the Shari’a really amenable to the type of economic analysis Posner suggests? Is economic pragmatism even capable of giving due consideration to its prescriptions? For some critics of economic cost-benefit analysis such as Amartya Sen[31], his market-centrism is entirely arbitrary – a vain attempt to shoehorn human complexity into a neat working model.[32] Whilst Posner may be able to defend the broadening of the economic domain conceptually, it is doubted by Sen and Martha Nussbaum[33] amongst others that it can practically function as a broad normative framework for decision making. At heart, these criticisms contend that economic pragmatism cannot effectively accommodate non-pecuniary values and that the pursuit of wealth maximisation is invariably biased against non-economic ends, even where wealth maximisation is construed as more than pecuniary interest.

Sen argues that the type of cost-benefit analysis involved in Posner’s economic consequentialism relies on market-based “contingent valuation,”[34] the process by which people’s attachment to certain ends is measured by the price they are willing to pay in the marketplace.[35] For Sen, values that are external to the marketplace simply do not fit this model because it is impossible to make meaningful valuations of price without information about what other individuals are prepared to pay. Preferences for environmental protection, for instance, are an end that cannot be priced using market mechanisms because there is no market which informs individuals about how others will act in relation to the same objective.[36] Similarly, it is not clear how Emirati judges could price the desirability of upholding the Shari’a. Deciding cases which defy market valuation, Sen suggests, requires judges to engage in the valuation of social states if they are not to turn a blind eye to these concerns.[37] If this occurs, the judicial analysis is not empirical in the way Posner argues, but political.

Nussbaum’s criticism of economic analysis follows a similar trajectory to Sen’s, though it is particularly relevant to considering the Shari’a since it focuses on the issue of deontological, or moral, imperatives. Nussbaum suggests that whilst economic cost-benefit analysis may be useful to identify the “obvious question”[38] of which resolution to a dilemma is preferable, it goes no way towards identifying the moral quality of that decision. Whilst empirical analysis may enable us to make a decision in difficult cases, it does not necessarily mean that that decision will comport with moral imperatives.[39] Thus for Nussbaum, moral imperatives – such as those that the Shari’a imposes on Muslims – are a set of ends which fall outside the sphere of economic analysis.

The upshot of these criticisms is that economic pragmatism is only helpful in matters that can be framed entirely within the language of market valuation. If Nussbaum and Sen are correct, then it seems that Posner’s economic pragmatism is incapable of recognising moral concerns, such as those of the Islamic Shari’a. When applied to cases such as Junatta Bank Case where it must adjudicate between Shari’a compliance and economic concerns, it seems that economic pragmatism will always by swayed by economic concerns because it is inherently predisposed to prioritise economic objectives.

REVISITING THE SHARI’A CLAUSE

If this is right, then the pragmatic justification of Junatta Bank is unremarkable. In a contest between economic benefit and Islamist religious values, the economic factors are the only ones that can enter the evaluative matrix so the example is inconclusive. So is economic pragmatism only effective at articulating an economically driven value system, or can Posner’s broad definition of wealth accommodate concerns such as Shari’a compliance? To more effectively test the veracity of Sen and Nussbaum’s claims, this part of the paper examine a difficult Supreme Court case in which compliance with the Shari’a was the overriding judicial concern. Unless economic pragmatism can also explain decisions of this kind, it appears that Sen and Nussbaum’s contentions impose effective limits on its use.

i. The Alcoholic Drinks Case

In Case number 4 year 9[40] (the Alcoholic Drinks Case) the UAE Supreme Court once again considered the meaning of the Shari’a Clause, this time in relation to the constitutionality of Article 17 of the Abu Dhabi Alcoholic Drinks Law[41]. This Article prescribes penalties of imprisonment and a fine for drunkenness in public, and the Supreme Court was asked to consider whether this was unconstitutional given that it differed from the compulsory Hadd punishment imposed by the Shari’a.[42] In direct contradiction to the Junatta Bank Case, the court pronounced that Article 75 of UAE Federal Law No.10/1973 does inform the reading of the Shari’a Clause, and that any legislation which does not comply with Shari’a requirements is unconstitutional.[43]

So what explanation could Posner suggest for the Court’s decision to endorse the Islamist interpretation of the Shari’a Clause when dealing with criminal matters? Especially considering that the Islamist interpretation confers a deontological primacy upon the Shari’a as a divinely ordained system,[44] it is not obvious that this decision can be explained pragmatically. It may, however, be possible to reframe the absolute prescriptions of the Shari’a to make them amenable to pragmatic analysis. Robert Frank suggests that it might be possible to incorporate the immutable principles of a deontological moral system within a broader consequentialist schema.[45] Frank notes that absolute prescriptions are often more rhetorically effective than consequentialist ones when it comes to guaranteeing moral behaviour, demonstrating how deontological prescriptions might be reconfigured in consequentialist terms.[46]

By adopting a similar strategy, it might be possible to extend the notion of wealth maximisation to explain the Supreme Court’s concern with Shari’a compliance in the Alcoholic Drinks Case. I suggest that the Shari’a’s deontological prohibition against imbibing alcohol could be put in a consequentialist form through appeal to national identity. In as much as the constitution stipulates that “Islam is the official religion of the Union”[47], it stipulates Islamism as an integral component of Emirati national identity. Recognising this, a consequentialist can argue that adhering to Shari’a requirements is a valuable end in itself since it buttresses and consolidates the Emirati Islamic identity. By framing this argument in terms of identity politics, rather than deontologically, the Shari’a’s importance is construed consequentially, allowing it to contribute to the notion of wealth maximisation.

Even so, without an available price mechanism for valuating this aspect of Emirati identity, it seems that Sen’s observations regarding market valuation still hold some weight. Whilst following Frank’s suggestion indicates that Shari’a values can feature in a pragmatic account, it is less clear that they are amenable to the specific tools of economic analysis. As such, when the Alcohol DrinksCase is considered in light of Nussbaum and Sen’s criticisms, a clarified understanding of economic pragmatism is revealed. Undertaking to reframe the Shari’a provisions in consequentialist rather than deontological terms thus enables non-economic concerns to enter into the evaluative matrix. However, without the ability to use contingent valuation to weight those concerns judges must resort to assessing them in a political, rather than economic, manner. Thus by considering Posner’s economic pragmatism in the context of a society which exhibits concern for both economic ends and the prescriptions of the Shari’a, it becomes apparent that in the most difficult cases of social heterogeneity economic pragmatism is compelled to decide difficult cases by political evaluation.

Whilst this realisation might be seen as frustrating economic pragmatism’s ability to deliver an overarching normative framework, it is perhaps more constructively viewed as emphasising that economic analysis is the default tool but not the obligatory one.[48] Accepting Posner’s broad definition of wealth maximisation, it is necessary to accept that certain issues must be encountered as political questions rather than economic ones, even though the consequentialist methodology still applies.[49] Once pragmatism is construed in this way, it demonstrates that for difficult questions involving social and cultural heterogeneity the process of resolving issues is never fully determinate. However, this is not altogether unexpected – as Posner notes: “The conversational method is, by definition, inconclusive in difficult cases where society is heterogenous. But this is to speak redundantly, for it is cultural, social, and political heterogeneity that makes cases difficult.”[50]

ii. The conflicting interpretations of the Shari’a Clause and the pragmatic solution

The Supreme Court’s interpretation of the Shari’a Clause elucidates another distinctive aspect of how Posner’s economic pragmatism is applied in practice. It should be obvious by now that when the Supreme Court decisions applying the Shari’a Clause are viewed in conjunction with one another, they seem to exhibit lines of reasoning that are directly contradictory. Since the Islamist interpretation seems to be favoured in the Alcoholic Drinks Case, and the Liberal interpretation with respect to banking interest, an acute interpretative tension is evident between the two decisions. So how can the fact that economic factors dominate the Janutta Bank Case be reconciled with preferencing Shari’a concerns in the Alcoholic Drinks Case?

In explaining this ostensible divergence of opinion over the interpretation of the Shari’a Clause, it is helpful to first note why this seems to be a problem in the first place. The sense that the divergent treatment of the Shari’a Clause creates a crisis of judicial legitimacy that demands resolution is a consequence of the assumption that it is possible to get clear on the actual meaning of the provision. Once we adopt the economic pragmatist’s approach of resolving questions according to their empirical ramifications, however, the ability to decide difficult questions no longer depends on clarifying the meaning of provisions.[51]

As detailed above, in both of the Shari’a Clause cases a consequentialist evaluation takes place between economic concerns and concerns over national Islamic identity. But given the distinct subject matters to which the Shari’a Clause is applied in each case, these factors are weighted differently in each: In the Alcohol Drinks Case, it is appropriate to preference the Shari’a – thus affirming UAE cultural and religious identity – since there are no significant countervailing economic factors in play. In the Junatta Bank Case, by contrast, the economic dangers countenanced by banning commercial banking interest are much more compelling. By treating these cases pragmatically, we see that the issue on which they turn is not what the meaning of the constitutional clause is, but which available application will generate the most socially advantageous consequences. At no point, it should be noted, does these justifications actually commit to either the Islamist or the Liberal interpretation of the Shari’a Clause. Rather, the cases are treated primarily as questions about the role of financial markets and Emirati national identity, determinable by empirical measures and political arguments. The question how the Shari’a Clause should be translated is entirely beside the point, because for a pragmatist there is no way to tell which available ‘translation’ is better until the facts of an issue are evaluated consequentially. In this context it no longer makes sense to talk of conflicting translations because it no longer makes sense to talk of translations at all. As such, once the pragmatic attitude[52] is adopted, the ostensible tension over interpreting the Shari’a Clause simply dissipates.

CONCLUSION

Using economic pragmatism to explain the particularly difficult case of applying the Shari’a Clause in the UAE therefore demonstrates that consequentialist evaluation offers the conceptual resources to legitimate judicial decisions whose credibility might otherwise be in question. This paper has explored how making a decision’s empirical repercussions an integral part of its justification, is a viable judicial strategy, even if in the most difficult cases of social heterogeneity the assessment is political rather than economic.

Whilst the insights of this discussion are certainly fertile for implementation by the UAE Supreme Court, their greater significance is indubitably the way in which they bring our understanding of economic pragmatism into sharper relief. Responding to the criticisms of Sen and Nussbaum, it becomes apparent that the economic method does not give an exhaustive account of judicial decision making, and that it must be supplemented with the conversationalism of political assessment when confronting situations which defy market valuation. Emphasising the importance of making consequentialist explicit, economic pragmatism averts a normative crisis by submitting them to the marketplace of conversational objectivity.

The most elucidating realisation which emerges, however, is that interpretative controversies can be dissolved when approached from an empirical trajectory. In the face of two ostensibly contradictory Supreme Court decisions, economic pragmatism shifts explanatory focus from the semantic qualities of the Shari’a Clause to how the empirical factors of each case play out, illuminating that the actual process of deciding difficult cases can be insulated from the perplexing interpretive questions which problematise them. As such, the confounding questions of constitutional meaning which otherwise seem necessary do not even arise from a pragmatic viewpoint. Pragmatism, notwithstanding its limitations, eschews interpretative controversies not by solving them, but by deflating them.

TABLE OF CASES

Abu Dhabi Federal Appeal Case No. 102/1980, decided on 29/10/1980

Case number 1 year 8, UAE Official Gazette, 100(Jan), 1982, pp. 45-9.

Case number 1 year 10, UAE Official Gazette, 129(Aug), 1983, pp. 102-7.

Case number 4 year 9, UAE Official Gazette, 135(Feb), 1984, pp. 83-93.

Junatta Bank Case

TABLE OF STATUTES

Abu Dhabi Alcoholic Drinks Law (Local Law No. 8/1976).

Abu Dhabi Law of Civil Procedures (Local Law No. 3/1970).

Constitution of the United Arab Emirates

Law of Control of Alcoholic Drinks in Sharjah, 1972.

United Arab Emirates Federal Law No.6/1978.

United Arab Emirates Federal Law No.10/1973.

BIBLIOGRAPHY

Al-Muhairi, Butti Sultan Butti Ali, “Th e Development of the UAE Legal System and Unification with the Judicial System”, in Arab Law Quarterly, 11,1996, p. 135-6.

Al-Muhairi, Butti Sultan Butti Ali , “The Incompatibility of the Penal Code with Shari’a”, in Arab Law Quarterly, 12(3), 1997, 307-329.

Al-Muhairi, Butti Sultan Butti Ali , “The Position of Shari’a within the UAE Constitution and the Federal Supreme Court’s Application of the Constitutional Clause concerning Shari’a”, in Arab Law Quarterly, 11(3), 1996, 219-244.

Amin, S.H., Middle East Legal Systems, Royston, Glasgow, 1985.

Carballo, Alejandro, “The Law of the Dubai International Financial Centre: Common Law Oasis or Mirage Within the UAE?”, in Arab Law Quarterly, 21, 2007, 91-104.

Dewey, John, Experience and Nature, Norton, New York, 1925.

Dewey, John, Reconstruction in Philosophy, Beacon Press, Boston,1948.

Dewey, John, “Logical Method in Law”, in Philosophy and Civilisation, Minton, Balch & Company, New York, 1931 pp. 126-40.

James, William, Pragmatism and the Meaning of Truth, Harvard University Press, Cambridge, Mass., 1975.

Knight, Jack and Johnson, James, “Political Consequences of Pragmatism”, in Political Theory, 24(1), 1996, pp. 68-96.

Khalifa, Ali Mohammed, The United Arab Emirates: Unity in Fragmentation, Westview Press, Boulder, Colorado, 1979.

Mallat, Chibli, Introduction to Middle Eastern Law, Oxford University Press, New York, 2007.

Posner, Richard, “Against Constitutional Theory”, in New York University Law Review, 73(1), 1998.

Posner, Richard, The Problems of Jurisprudence, Harvard University Press, Cambridge, Mass., 1990.

Rorty, Richard, Philosophy and the Mirror of Nature, Basil Blackwell, Oxford, 1980.

Tamanaha, Brian, Realistic Socio-Legal Theory, Clarendon Press, Oxford, 1997.

Taryam, Abdullah Omran, The Establishment of the United Arab Emirates 1950-85, Crook Helm, New York, 1987.


[1] Posner, Richard, The Problems of Jurisprudence, Harvard University Press, Cambridge, Mass., 1990, p. 31.

[2] Posner, Richard, The Problems of Jurisprudence, Harvard University Press, Cambridge, Mass., 1990.

[3] Elsewhere Posner argues for the benefits of applying pragmatic methods in more specific contexts. “Against Constitutional Theory” (Posner, Richard, in New York University Law Review, 73(1), 1998) for instance focuses on how pragmatism might specifically assist matters of constitutional interpretation in the United States. This paper focuses on The Problems of Jurisprudence since it is perhaps the most comprehensive pronouncement of his jurisprudential program.

[4] Posner, The Problems of Jurisprudence, p. 26.

[5] Id at 31.

[6] James, William, Pragmatism and the Meaning of Truth, Harvard University Press, Cambridge, Mass., 1975.

[7] Dewey, John, Reconstruction in Philosophy, Beacon Press, Boston,1948.

[8] Tamanaha, Brian, Realistic Socio-Legal Theory, Clarendon Press, Oxford, 1997, p.32. This strain of argument is further developed in Richard Rorty’s seminal Philosophy and the Mirror of Nature (Basil Blackwell, Oxford, 1980), which largely reintroduced it into contemporary philosophical discussion.

[9] Posner sees the economic analysis of law as a formalist mechanism working from a realist premise. The formalism offsets the indeterminacy and nihilism of unrestrained legal realism, and the realist premise acknowledges the social genesis and character of law (Posner, The Problems of Jurisprudence, p. 24).

[10] Id at 30.

[11] Id at 26.

[12] Id at 270.

[13] Id at 271.

[14] Id at 270. Conversational objectivity is in contrast to ontological and scientific objectivity, the other two grades which Posner suggests that jurisprudential theories attempt to encapsulate.

[15] Id at 308.

[16] Id at 132.

[17] Id at 368.

[18] Id at 367.

[19] Id at 369.

[20] Al-Muhairi, Butti Sultan Butti Ali , “The Position of Shari’a within the UAE Constitution and the Federal Supreme Court’s Application of the Constitutional Clause concerning Shari’a”, in Arab Law Quarterly, 11(3), 1996, p. 226

[21] Ibid.

[22] Carballo, Alejandro, “The Law of the Dubai International Financial Centre: Common Law Oasis or Mirage Within the UAE?”, in Arab Law Quarterly, 21, 2007, 91-104.

[23] Al-Muhairi, “The Position of Shari’a”, p. 226

[24] The Appeal Court of Abu Dhabi ruled: “According to the Islamic Shari’a, banking interest constitutes “Riba”, a grave sin forbidden by the holy Quran.” (Abu Dhabi Federal Appeal Case No. 102/1980, decided on 29/10/1980).

[25] Al-Muhairi, “The Position of Shari’a”, p. 235.

[26] Id at 237-8.

[27] Id at 238.

[28] Ibid.

[29] Al-Muhairi, “The Position of Shari’a”, p. 244, n 67.

[30] Id at 244.

[31] Sen, Amartya, “The Discipline of Cost-Benefit Analysis”, in Adler, Matthew & Posner, Eric (Eds.), Cost-Benefit Analysis: Legal, Economic and Philosophical Perspectives, University of Chicago, Chicago, 2001, p. 95.

[32] Id at 115.

[33] Nussbaum, Martha, “The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis” in Adler, Matthew & Posner, Eric (Eds.), Cost-Benefit Analysis: Legal, Economic and Philosophical Perspectives, University of Chicago, Chicago, 2001, p. 169.

[34] Sen, “The Discipline of Cost-Benefit Analysis”, p. 112.

[35] Id at 109-112.

[36] “The philosophy behind contingent valuation seems to lie in the idea that an environmental good can be seen in essentially the same way as a normal private commodity that we purchase and consume. The valuation that is thus expressed is that of achieving single-handedly – this is crucial – this environmental benefit.” (Id at 112)

[37] Id at 114.

[38] Nussbaum, “The Costs of Tragedy”, p. 170.

[39] Id at 200.

[40] UAE Official Gazette, 135(Feb), 1984, pp. 83-93.

[41] Abu Dhabi Alcoholic Drinks Law (Local Law No. 8/1976)

[42] The penalty imposed by the Shari’a is 80 lashes.

[43] Case number 4 year 9, UAE Official Gazette, 135(Feb), 1984, pp. 83-93.

[44] Al-Muhairi, Butti Sultan Butti Ali, “Th e Development of the UAE Legal System and Unification with the Judicial System”, in Arab Law Quarterly, 11,1996, p. 225.

[45] Frank, Robert, “Why is Cost-Benefit Analysis so Controversial?” in Adler, Matthew & Posner, Eric (Eds.), Cost-Benefit Analysis: Legal, Economic and Philosophical Perspectives, University of Chicago, Chicago, 2001, p.77.

[46] Id at 93.

[47] Article 7, Constitution of the United Arab Emirates.

[48] Posner, The Problems of Jurisprudence, p. 367-370.

[49] Posner notes that at the limits of social consensus, pragmatism is forced to rely upon the politically controversial. He describes this realisation as “troubling but inescapable” (Id at 292).

[50] Id at 31.

[51] As Posner notes: “It might be better to discard the word ‘interpretation’ altogether and speak instead in pragmatic fashion of the consequences of competing approaches to the judicial function in statutory and constitutional cases.” (Id at 271-2).

[52] For Posner, it is crucial to realise that pragmatism is much more a jurisprudential attitude than a dogma (Id at 28).


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