I should note in relation to the broader conceptand scope of this project on religion, family and democracy that the argument I am presenting here isprobably applicable to other religious and customary law traditions. However, Iwill limit my remarks here to the relationship between Sharia and state law inparticular not only because this is the focus of my own work, but also as amatter on which I hope to make a difference as a Muslim from Sudan who hasclosely witnessed the tragic consequences of confusion among present-dayMuslims on this question. My aim is therefore to address this specific questionfor its relevant to Muslims throughout the world, including Nigeria which isthe primary case study for this project. I also hope, however, that what I haveto say about Sharia and state law can be helpful in clarifying the relationshipbetween religious and customary law in general and state law.
The premise of the general framework of therelevance of Sharia (and other religious or customary norms) to family law isthat the law and administration of justice of any state should reflect thevalues, priority concerns and interests of the population. In that process ofself-governance, the democratic principle indicates that the political will ofthe majority of the population should prevail in such matters, subject to theconstitutional rights of the minority or minorities. Religious, ethnic andother communities have the right to organize and act collectively incontributing to the formulation and implementation of public policy and legislationthrough the democratic political process, but such collective action should nothave a monopoly or veto power over such matters, even when acting in the nameof the predominant majority of the population. The importance of thislimitation of the will of the majority with the rights of the minority is inconverse relationship to the predominance of the majority, that is, the largerand stronger the majority the more important it is to subject its politicalwill to the constitutional rights of the minority or minorities. Another aspectof this approach is that notions of majority and minority are not only fluid,contingent, and contested, but also relative to structural and contextual powerrelations. Notions of majority and minority are ambiguous because we are allmembers of the majority of our societies in some respects, and members ofminorities in other respects. I may be in the majority in ethnic or religiousterms, but in the minority in political terms, or vice versa. A numericalminority can be a political majority, as was clearly seen in the case ofApartheid South Africa, and is probably true in many parts of the worlds today,though in more subtle or ambiguous ways.
These and other corollaries of the principle ofmajority rule subject to rights of minorities are so foundational for socialand political organization in all human societies, everywhere, that none of uscan ever “get his or her own way” in matters of public policy and legislation.We all have to live with policies and laws we oppose, even when adopted in ourcollective name, until we can change them through the same democratic politicalprocess that is made possible by constitutional limitations on the prevalentpolitical will of the day. The basic moral and political justification ofmajority rule, I believe, is the possibility for the political minority oftoday to become the political majority of tomorrow. For that to be a plausiblepossibility for minorities to engage in the legitimate and peaceful politicalprocess, instead of resorting to violent rebellion or submitting todehumanizing apathy and subordination, the constitutional rights of allcitizens must be equally vigorously protected by and for all of us, becauseeach of us do need these rights for ourselves and our communities, even whenthat may seem unnecessary for those in power at the time. The basic principleto emphasize here is that the more vulnerable and politically or sociallymarginalized a person or group is, the more deserving of the protection ofconstitutional rights against the “democratic” tyranny of the majority.
Another aspect of my approach is that the term“normative pluralism” is more appropriate than legal/judicial pluralism inreflecting the reality of normative diversity, with a moral and political commitmentto respecting that diversity, while preserving the integrity of the uniformityof state legal systems. The term “religious” includes native/traditionalreligions and customary normative systems. My focus on family law is due to thefact that it is probably the most widely practiced or proposed field ofreligious/customary law for application through state legal systems.Accordingly, the term “law” here refers to rules governing family relationsunder state legal systems, as distinguished from other normative systems in abroader sense. In other words, when religious or customary norms are enforcedas state law, they are no longer religious or customary. This means that thereligious or customary rationale of the norms should not be invoked to lend additionalauthority to what is really an integral part of secular state law. In thislight, I would challenge invoking religious or customary authority to exemptfamily law from constitutional and human rights limitations on all aspects ofstate law.
This point is important for the distinction I amdrawing between state law and religious or customary normative systems as twodifferent and separate types of systems that should not be confused by callingall of them “law”. Norms regulating family relations can be religious orcustomary as long as they are not enforced through state law, but once soenforced they become simply state law rules, regardless of their perceivedreligious or customary sources. This is not to suggest or imply that state lawis superior or more effective than other normative systems. On thecontrary, religious and customarynorms may often be more effective than state law in shaping the behavior ofbelievers or members of a community. Rather, the point is that since the sourceand authority of state law are different from that of religious normativesystems, it is confusing to use the term “law” for both types of normativesystems. It seems that preference for the term “law” is to indicate the senseof binding norms that seek to regulate human behavior and organize socialinstitutions. But this purpose can be realized by using the term “normativesystem”, as rules that are binding and authoritative in a different manner thanstate law, without confusing normative and legal systems.
Finally on this general framework and approach,there are clear overlaps between state law and other normative systems of anysociety, but the two types of systems should be distinguished from each inorder to better regulate their dialectic relations. For instance, religiousnorms can enhance the legitimacy and efficacy of state law which, in turn, mayfacilitate compliance with religious and customary norms among their respectivecommunities. At the same time, however, state law may need to intervene to bringcommunity-based compliance into conformity with constitutional and human rightsstandards. For the purposes of such regulation and mediation of competingnormative claims, the state may seek to influence social change by facilitatinginternal cultural transformation, as I will briefly explain later in Part IIIof this posting, but should not attempt to achieve its legitimate objectivescoercively. The less normative change is intrusive and more reliant on internalagents of social change the more effective and sustainable will the outcome be.
Part II: The Argument from Sharia
I should first emphasize that although my argumentfocuses on current notions of the state and state law as globally applicableideas that have spread far beyond their European origins, I would emphasize thedistinct historical and contextual workings of these institutions throughoutthe world. Subject to historical and contextual factors, all human societiestoday live under the same basic model of the centralized, bureaucratic, hierarchical,territorially bounded so-called “nation states”. This does not mean that thesestates are working well everywhere, or that they must operate in the same wayin every setting, but the basic model is the same, as practiced in thehistorical territorial, and demographic context of each country. It is notpossible to evaluate or discuss here the distinctive ways in which stateinstitutions work and evolve in various settings, but the need for suchanalysis is fully acknowledged.
My general argument is that the nature of Sharia asa religious normative system, on the one hand, and state law as a secularpolitical institution, on the other, requires clear differentiation between thetwo in theory and separation in practice. However, the methodological and normativesimilarities between Sharia and state law, and the fact that they both seek toregulate human behavior in the same social space, raise possibilities ofinteraction and cross-fertilization between the two. Methodologically, thoughSharia evolved among independent Muslim scholars and their communities, outsidestate institution, the methods of interpretation the Quran and Sunna –traditions- of the Prophet used by those scholars are similar to moderntechniques of textual construction and reasoning by analogy and precedent.(Hallaq 2009, 100-124) Normative similarities between Sharia and state law canbe seen in such fields as property, contracts, and civil liability for damageto or misappropriation of property. (Hallaq 2009, 239-245, 296-306) It is thereforenot difficult to envision a dynamic process of mutual interaction betweenSharia and state law principles through what I call ‘civic reason,’ as I willdiscuss further below. As a result of such interactions, state law can belegitimized by Sharia among religious believers, while ways in which Muslimsperceive and practice the social aspects of Sharia can be influenced byconstitutional and human rights norms.
For that possibility of positive interaction,however, it must be clear that Sharia as such cannot be enforced as state lawand remain religiously authoritative for Muslims for the following reasons:First, whatever the state enforces is bound to be the view of the ruling eliteof the rules of Sharia they choose to apply and never Sharia itself because anyhuman understanding of Sharia is only human and cannot be divine or religiousas such. Second, since the ruling elite will have to select from among equallylegitimate competing views of the rules of Sharia, as interpreted by Muslimscholars over time, state officials would be coercively enforcing their choiceupon the Muslim population, regardless of what those Muslims believe Sharia tobe on the issue at hand. For instance, Wahabi Sunnis of Saudi Arabia areimposing their views on Shia citizens of the country who believe the Wahabiview to be heretical. Imami Shia rulers of Iranare imposing their views ofSharia on citizens of Iran who disagree with the official state ideology of thestate. Third, whatever is being enforced through state law and administrationof justice is authorized by the coercive power of the state, and not thereligious validity of the rule. Since it is impossible to enforce the totalityof Sharia, according to all possible interpretations, some aspects would beenforced because the state decreed that, while others will remain unenforcedbecause the state so determined.
It is therefore clear that the outcome of stateenforcement will always be secular, not religious, regardless of claims of thestate in some Muslim-majority countries like Iran or Saudi Arabia that it isenforcing Sharia as state law.(An-Na’im 2008, pp. 30-36) Muslim citizens mayinfluence formulation of state law and public policy from a Sharia perspectiveif they can summon sufficient political support of such propositions throughthe democratic political process, but that does not mean that the norms soincorporated into state law are still religious norms. Sharia norms can be oneof the normative sources from which state law is derived but not cannot as suchconstitute state law because Muslims believed them to be Sharia.
This view does not dispute the religious authorityof Sharia, which must necessarily exist outside the framework of the state. Asa Muslim, I believe Sharia is always relevant and binding on Muslims, but onlyas each of us believes it to be and not as declared and coercively enforced bythe state. For any act to be religiously valid, the individual believer mustcomply voluntarily, with the necessary pious intent (nya), and withoutviolating the rights of others. This focus on the individual believer isintegral to Islam. (The Quran, 6:164; 17:15; 35:18; 39:7; 52:21; 74:38;Taha1987, 62-77) Still, principles of Sharia should be relevant to the publicdiscourse, provided one can make the argument for that through what I call‘civic reason’ and not simply by assertions of what one believes to be the willof God. By civic reason I mean that the rationale and purpose of public policyor legislation is based on the sort of reasoning that the generality ofcitizens can accept or reject, which cannot happen when such matters aredemanded as categorical religious mandate. The process of civic reason alsorequires conformity with constitutional and human rights standards in theadoption and implementation of public policy and legislation. All citizens mustbe able to make their own legislative proposal or object to what others areproposing through public and fully inclusive public debate, without having tochallenge each others’ religious convictions. Moreover, by its nature andrationale, civic reason is not limited to Sharia principles and can apply toother religious normative systems. Civic reason and reasoning, not personalbeliefs and motivation, are necessary whether Muslims or members of any otherreligion or tradition, constitute the majority or the minority of thepopulation of the state. (An-Na’im 2008, 92-101)
I am suggesting that these two types ofrelationships can exist between Sharia and state law when the two systems applyto the same human subjects within the same space and time. It may therefore behelpful to see Sharia and state law as complementary but different normativesystems, instead of requiring either to conform to the nature and role of theother. In other words, this dialectic relationship is premised on a distinction(not dichotomy) between Sharia and state law to avoid confusing the function,operation, and nature of outcomes when the two systems co-exist in the samespace and apply to the same human subjects. If state law incorporates aprinciple of Sharia for coercive enforcement by state courts and executivepowers, the outcome is a matter of state law and not Sharia because it will nothave the religious significance of compliance with a religious obligation.Conversely, compliance with Sharia cannot provide legal justification forviolating state law. For Sharia and state law to be complementary, instead ofbeing mutually antagonistic, each system must operate on its own terms andwithin its field of competence and authority.
Part III: Sharia and Religious/CulturalSelf-determination
As I have argued in the preceding parts of thisposting, Sharia principles cannot be state law as such because of thedistinction, not dichotomy or hierarchy, between Sharia and state law. Thistrue, I believe, whether Muslims constitute the predominant majority orminority of the population because the reason is conceptual, not onlypolitical. Sharia cannot be state law because of the religious nature ofSharia, which is inherently and permanently different from state law, whichdoes not claim divine authority. Other conceptual reasons include theunavoidable need to select among equally legitimate views of Sharia for thepurposes of determining positive state law. The need for the state to definitivelyset the law and coercively enforce it on the totality of the population subjectto its jurisdiction is inconsistent with the religious nature of Sharia becauseno human being can decided religious truth for human beings. At the same time,however, Muslims can exercise their fundamental democratic right toreligious/cultural self-determination through the complementary relationshipbetween Sharia and state. I will now briefly clarify how this might happen inpractice.
In my view, there are three main elements to thisframework of religious/cultural self-determination for Muslims:
(1)Private social practice of Sharia within theframework of state law and its constitutional safeguards;
(2)Consideration Sharia as normative source forstate law through civic reason in the democratic political process, withoutclaiming that Sharia can be state law as such;
(3)Religious discourse and cultural transformationto mediate tensions between historical interpretations of Sharia and modernconstitutional and human rights principles.
On the first count, Muslims can in fact behave inconformity with the vast majority of Sharia principles without coming intoconflict with state law in a democratic society. For example, Muslims canrefrain from taking or charging interest on loans (riba)”, prohibited bySharia, and can establish financial institutions that enable them to do that,within the framework of existing state law that permits charging interest.Muslims can also observe Sharia requirements about marriage and divorcevoluntarily without having those requirements imposed on all by state law.Space does not permit further elaboration on this, but whatever conflicts ortensions that may exist betweens Sharia and state law can be mediated throughthe second two approaches.
The premise of the second count is that, as notedearlier, the law and administration of justice of any state should reflect theethical values, priorities and interests of the majority, subject to theconstitutional rights of the minority or minorities, however small, includingmembers of the Muslim majority who disagree with other Muslims. Muslims andother religious or cultural communities have the right to organize to actcollectively in contributing to the formulation and implementation of publicpolicy and legislation through civic reason and the political process, providedthey do not claim to have a monopoly or veto power over such matters, even whenacting in the name of the predominant majority of the population. For instance,Muslims can lobby for a legal ban on charging interest if they can persuadeother citizens of the economic or social benefits of such a ban by givingreasons that all can debate freely, rather than asserting their own religiousconviction or cultural affiliation as categorical justification. Muslims canalso propose legislation to provide for Sharia principles of marriage anddivorce, through the same process and subject to constitutional and humanrights safeguards. This possibility does not mean that Sharia as such canco-exist as a parallel legal system competing with state law of any country, orthat it retains its religious authority when incorporated into state law. Inview of the centralized, bureaucratic, and coercive nature of the modern‘territorial’ state, the secular legislative organs of the state must haveexclusive monopoly on enacting state law, and secular judicial administrativeorgans must also have exclusive authority to interpret and apply state law.
The third and critically important approach to religious/culturalself-determinationfor Muslims, whether they are the majority or minority of the population of thestate where they live, is through Islamic discourse on the interpretation ofSharia in the modern context. Since what Muslims uphold as Sharia today was theproduct of human interpretation of the Quran and Sunna of the Prophet, as notedearlier, that can be modified through re-interpretation of the same sources.The outcome would be as legitimate from an Islamic point of view as any earlierinterpretation of those principles if Muslims accept them as such. What I callinter-generational consensus was the only manner in which any principle ofSharia came to be established in the past, and remains the valid today. Thereis possibility of a human institution that can “declare or amend Islamicdoctrine” on behalf of the general Muslim population of the world. (An-Na’im2008, 12-15) It is not possible to discuss here the current and future agenda,methodologies and processes of such re-interpretation, (An-Na’im 1990) but thepurpose here is to explore ways of addressing problematic aspects of historicalinterpretations of Shari regarding, for example, the rights of women andfreedom of religion. For instance, there is no question that Sharia requiresmen to take more than one wife, but whether it permits polygamy today or nothas been a matter of debate among Muslims scholars and opinion leaders sincethe 19th century. There is also heated debate about the presumed right of aMuslim husband to repudiate his wife universality and without having to showgood cause. Resolving such issues through public debate among Muslims willenhance the legitimacy of state laws prohibiting polygamy and requiringequality between men and women in matters of divorce and its legal consequences.
It must be emphasized in conclusion, however, thatnone of these approaches would permit Muslims to opt out of the application ofsecular state law, or have Sharia principles enacted as state law exceptthrough the regular democratic process and subject to constitutionalsafeguards. Neither would Muslims be entitled to plead Sharia as justificationof violation of state law. Rather, the object is to enable Muslims to exercisetheir right to religious/cultural self-determination within the framework ofstate law and its constitutional safeguards, like any other religious/culturalcommunity. The same or equivalent approaches are equally available to otherreligious/cultural communities to exercise their right to self-determinationwithin the same framework and subject to the same safeguards.
References:
An-Na’im, Abdullahi Ahmed, 1990, Toward anIslamic Reformation: Civil Liberties, HumanRights and International Law (SyracuseUniversity Press).
An-Na’im, Abdullahi Ahmed, 2008 An-Na`im, Islamand the Secular State: Negotiating theFuture of Shari`a (Harvard UP).
Hallaq,Wael B., 2009, Sharica: Theory, Practice,Transformations (Cambridge University Press).
Taha, Mahmoud Mohamed, 1987, The Second Messageof Islam (Syracuse, NY: Syracuse University Press).