Concentrating on the concept of law and its “glocal” translations, this book advocates a praxeological sociohistorical jurisprudence. It seeks to bypass at least two dichotomies opposing, on the one hand, lawyers’ law in books and anthropologists’ law in action, and, on the other, positivist and realist sociolegal theories. From such a perspective, law is a concept whose historical and practical ontology can be studied through the positivization process that transformed it into a major social engineering tool. The book is a contribution to the praxeological sociohistorical study of positive law, in both its global and its local dimensions. It approaches the subject from the viewpoint of Muslim societies. In other words, it addresses the phenomenon of positive law from the perspective of societies in which Islamic norms had an all-pervading though diverse influence. It shows both how positive law “glocalized” in societies characterized as Muslim and how, by the same token, Islamic norms became positivized.

Rosalynde Welch and Nathan Oman describe how the Church of Jesus Christ of Latter-day Saints has deployed conscience. Distinguished from many Protestant accounts of conscience, the church’s account does not focus on conscience as choosing by the self. Instead, it relies on externally provided, yet personally received revelation – whether available to all (“light of Christ”) or more exclusive (“gift of the Holy Ghost”). Though the church values personal revelation, interpretations and decisions by the church hierarchy prevails over conscientiously held beliefs of church members. Dissent is not unheard of in the church. For most of the nineteenth century, the church did not obey the anti-polygamy laws passed by Congress. Some resistance used language of conscience, while others identified outside forces – revelation, oracles, religious persecution, or the Constitution (which the church thought superior to mere laws) – as reasons to resist the federal government. Recently, in the case of Bishop v. Amos, the church based its liberty claim on its interest in running its own affairs. Regardless, the church generally has prized fealty to law over idiosyncratic conscientious resistance.

Micah Watson argues that an active conscience is the outgrowth of the evangelical mind. Evangelicalism is the form of Protestantism that relies on the truths of historical Christianity while navigating between mainline Protestantism and fundamentalism. For evangelicals, conscience is founded in the Bible, particularly the writings of Paul. It also flowered in the post-Reformation world, where it was taught that an active conscience signaled a person’s salvation. Conscience also led evangelicals to be active against all forms of sinfulness. In the United States, this contributed to the proliferation of voluntary societies, where Christians who were “saved for service” could exercise their consciences to spread the Gospel or stamp out perceived evils (like alcohol use). Watson traces the history of evangelical conscience into the twentieth century, and he describes voices like Carl Henry and others who sought harmony between the pious strand of evangelicalism, and adherents who were committed to social action. Later in the twentieth century, evangelicals sought peace in society more than saving it. Still, evangelicals continue to oppose perceived social evils, including same-sex marriage.

Alexis Torrance considers early Church Fathers’ many treatments of the origins and roles of conscience in patristic literature. Contemporary commentators are especially prone to speak of conscience to affirm private judgments about personal feelings. Early Church Fathers, however, stressed that conscience is a communal gift presupposing shared convictions. They also stressed that conscience may become impaired under a variety of influences. The idea of conscience existed in Greek and Roman culture. Christians’ reflections, especially St. Paul, were crucial to the deliberations of Church Fathers. New Testament letters speak of conscience as a human faculty. Though not God’s voice, conscience does bring God’s voice to bear in our lives. Christian innovation connected conscience with the idea of a divine law, and some patristic authors identify conscience with a natural law. Human knowledge of right and wrong will be clouded by sin, thus conscience needs cleansing, by baptism, by following the commandments, and by continual examination of conscience and confession. It continually requires the grace of the Holy Spirit to govern one’s moral action in a way that might lead to God.

Edward Andrew discusses Pierre Bayle, who held that conscience was the “voice of God,” but that humans can still err. Enlightenment thinkers increasingly insisted that social approval, not God’s voice, guided conscience. Thus, conscience became not about certainty concerning the right course of action, but rather about alignment with social forces that might create stability. Bayle maintained that conscience was a faculty of the person, although subject to error. This distinguished him from Locke, who referenced conscience in his political writings. However, in his Essay concerning Human Understanding, Locke asserted that conscience was only one’s abiding beliefs. Bayle, however, proposed that conscience was the development of applications of natural law and Scripture. Harold Schulweis and Harold Berman are conversation partners for Bayle. Schulweis sees conscience as a force of judgment outside law. Morality is not fixed; rather, the person with an active conscience constantly recalibrates her actions and judges the right thing to do. Berman, however, thought conscience as a force beside law, like a jury that renders its judgment about the right decision under the circumstances.

John McGuckin examines early writings of Christian theologians about conscience. These relied upon the Scriptures and upon Plato, Aristotle, and others, and they regularly grappled with the positive and negative possibilities of conscience. But Christian writers made religious inquiries. St. Paul wrote about conscience in connection with a law “written on the heart,” a guide to everyone, but fallible and in need of the grace of Christ. The Greek fathers, led by Origen, emphasized conscience as an awareness of divine things, albeit impaired by man’s fall, yet still oriented to God and to obedience to moral norms. The Latin fathers, led by Augustine, emphasized humanity’s corruption after the fall and need for divine grace. Thus, conscience may convict, but might not provoke a person to goodness. Only loving God could do this. In both Latin and Greek thought, therefore, conscience was more than an inner voice instructing about right and wrong. It was a set of reflections on the spiritual identity of human beings.

Legal transformations in Egypt reflected the impact, through circuitous channels, of both civil law and modern scientific ways of thinking. What Egypt was undergoing in the legal domain can best be characterized by what we call the “positivization” of law and science. This holds true for the sciences of the mind and, consequently, forensic psychiatry. The very science of psychiatry, and its corollary pathologies and the kinds of patient concerned, was invented in the nineteenth century, when the mind was transformed into an object of knowledge. Egypt participated in the movement that saw the invention of psychiatry and therefore created psychiatric hospitals, specialized personnel, specific vocabulary, and scientifically relevant categories into which people suffering from “mental illness” could be placed. This dynamic had an impact on law and justice. This chapter partly follows this transformation of the understanding of the mind through the words and concepts used by Egyptian courts, from the late nineteenth to the mid-twentieth century, to characterize mental states and to attach legal consequences to them.

Our aim is to develop a sociohistorical jurisprudence of “law properly so called,” which involves a threefold analysis: conceptual, historical, and praxeological. Following the ground broken by analytical philosopher Ludwig Wittgenstein, conceptual analysis requires the exposition of the grammar through which concepts acquire their meaning and are meaningfully used. In a manner inspired by philosopher of science Ian Hacking and historian Reinhart Koselleck, historical analysis focuses on the description of the birth, development, and use of concepts. Drawing on the work of sociologist Harold Garfinkel, praxeological analysis describes the practical methods used by people to make sense of their environment, to produce their local order, and to act accordingly. The three approaches converge in their insistence on adopting an endogenous/indigenous perspective toward social life and its production.

This chapter deals with the relationship of the particular to the general in the practice of law in three stages. It begins by examining the conception of the rule and its general and abstract character in the doctrine and theory of law. It then “re-specifies” the question from a praxeological viewpoint; that is to say it deals with it from the point of view of practitioners and users of law. Finally, it addresses the issue of Islam in French public and legal life, through the so-called “burkini affaire” and the resulting judgment of the Council of State (Conseil d’État), which gives us the opportunity to examine how the question of the general and particular dimensions of the legal rule applies in context, contingently, at three levels: that of “public opinion,” which is polarized around the question of the degree of particularism admissible in public life; that of the regulatory authority, which establishes a rule starting from a particular case; and that of the judging authority, which decides a particular case on the basis of general rules.

In this chapter, we are interested in the mechanisms through which some customs are “incorporated” into legal systems. In order to make our demonstration, we start by clearing up some of the conceptual confusion surrounding the use of terms related to the notion of custom, by exploring some of the jurisprudential literature that addresses the distinctions among custom, customary law, and the customary sources of law. Turning to the Islamic world and normativity, we also conduct a very broad review of studies addressing the question of ‘urf. Taking the specific case of Morocco, we then concentrate on the colonial period, colonial interest in customary law, and the rejection of such law in the nationalist discourse and in the first decades following independence. Finally, again in Morocco, we focus on the specific case of al-kadd wa’l-si‘âya, which offers a striking example of the transformation of a local custom into a positive legal provision. In conclusion, we suggest some analytical caution regarding the concept of legal hybridity in order to better ascertain the historically contingent character of positive law.

In this chapter we describe the methods judges use to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in three countries: Morocco, Egypt, and Indonesia. More specifically, we explore the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. We proceed in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbât al-zawâj, ithbât al-nikâh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam” within the framework of positive, codified, and standardized law.

John Thompson describes how Martin Luther and John Calvin treated conscience. For Luther, natural conscience is beset by knowing that a person can never meet the rigorous requirements of the law. Faith can relieve a person’s downtrodden conscience, which would otherwise condemn him. Once a person accepts the favor of God that flows solely from trusting him, his conscience is liberated. He knows he can do nothing himself to merit that favor. His conscience is freed “to trust God’s promise of mercy and forgiveness.” The highest functioning conscience for Luther, then, is the one that does not depend on its own goodness or perfection. Calvin teaches that, though a person’s conscience is a natural faculty, it is marred and affected by the fall. Once a person is saved, however, his conscience is transformed so that he desires to obey the will of God found in the law. This is true even though adherence to the law will not add in the least to his salvation. For this reason, Calvin created a catechism to train and chasten Genevan Christians’ consciences. Calvin also helped to establish the Geneva consistory, which was less a disciplinary body, and rather “a school for consciences.”

Legal praxeology is the perspective that claims to consider the law through the practices that take the same law as their point of reference. It occupies the space that exists between formalism and sociologism. Legal praxeology is the approach that takes law seriously in all its formal and sociological depth. This means that it considers absurd the pretention of dealing with law while ignoring what its practitioners take as essential to their activities, that is, the rules; but it finds it equally indispensable to deal with these rules and the activities that refer to them through their modes of accomplishment. Legal praxeology does not aspire to theorizing, if the latter is understood as the search for abstract generalization in which to subsume the infinite variety of cases. Particular cases are studied ethnographically in order to elicit the mechanisms that are specific to how they unfold, including what is linked to the law as followed by both its professional and lay practitioners. Legal praxeology’s descriptive attention is concerned with the methods proper to the people concerned. One could speak of an interest in “legal ethnomethods.”

Wendell Willis excavates from within the New Testament the meanings of what is termed “conscience” in the English language today. Upon surveying all the books of the NT, Willis concludes that suneidesis (the word most-often translated in the NT as conscience) does not have a fixed meaning for NT writers. Willis’s key contribution is to cleave the reader’s understanding of suneidesis into two main categories, while also identifying additional shades of meaning across NT texts. For example, in the Pauline corpus, especially in 1 and 2 Corinthians, suneidesis seems most often to refer to a person’s self-knowledge or internal understandings about himself and his past actions. Here, suneidesis should be understood as “consciousness” rather than “conscience”. In this sense, suneidesis in Corinthians is fundamentally retrospective in nature, while in Romans, suneidesis is more often a guide for the believers’ future moral choices. Other usages of suneidesis in the NT are a variation on the theme first established by Paul: consciousness of past actions or an inner model for one’s future actions.