Shari’a in North Africa – Some Clarity Please

Recent elections in Tunisia appear to have give the largest share of the vote to the Ennahda party, which the media (Sydney Herald, New York Times, etc.) have characterized as an Islamic or Islamist party. But what do these words mean? Here the media appears silent, although the major intellectual force behind Ennahda is a political theorist (Rashid Ghannoushi) whose works are readily available in English.

Another example are recent reports that the leader of the interim government of Libya has declared that “Libya will have an Islamist tint.” (International Business Times) Quoting they report: “We are an Islamic country,” Abdul-Jalil said. “We take the Islamic region as the core of our new government. The constitution will be based on our Islamic religion.” Continuing they write “Islamic Sharia law would be the “basic source” of legislation in the country and existing laws that contradict the teachings of Islam will be nullified, Fox News reported Abdul-Jalil saying.”

Quite aside from the inaccuracy of translation (in Arabic the word “Shari’a” isn’t modified by “law” and Islamic isn’t modified by “religion”) let’s remember that this was a speech by a single member of the interim government on the occasion of a rally. It wasn’t a policy statement and we don’t know what is really intended. But we can get an idea of what it might mean, and probably doesn’t mean, by thinking for a moment about just what “law” is in any society.

First “law” means laws: rules about what is forbidden, what is allowed, and what is required. One meaning of the word “Shari’a” is the collections of laws that tell precisely what God has forbidden, what God allows, and what God requires. It appears that this is what Mr Abdul-Jalil meant when he used the word Shari’a. If so he will face some immediate problems. There are thousands of such rules, and they do sometimes appear to contradict each other, and each demands some degree of interpretation as to how it should be implemented in a modern society. Whoever is chosen as the legislature of Libya will need to work out these details and conflicts.

And this brings us to the next meaning of the word “law.” In most societies the law not only specifies what is forbidden and required, it also specifies the penalties and rewards for breaking the law. Because the Qur’an specifies only a few punishments with regard to a very small number of specific crimes most of the Shari’a law related to punishment was developed ad hoc in the early centuries of the Muslim movement. With the exception of the few punishments specified in the Qur’an (and Muslims do not even agree uniformly on these) the issue of appropriate Islamic punishment is a contentious one in every Muslim society. So here again an elected legislature will have to work things out.

And in any case who will enforce the law? In modern societies a third function of laws is to specify who enforces the law. This is complicated. In the United States law enforcement is divided up among a dozen or more agencies including the local police, constables, sheriff’s deputies, state police, the FBI, and many others. And although these groups “enforce” the law they don’t determine who is guilty or innocent, nor do they set punishments. Shari’a does not give any guidance as to by whom or how the law will be enforced. The Libyan government will need to work this out on its own, although it may choose to follow a pattern found in early Muslim states.

And who will determine guilt and innocence? Modern societies have laws that establish court systems and the rules under which they will work. Shari’a doesn’t deal with this, although there were varying traditions in older Muslim societies. So the Libyan legislators will need to devise a court system, and that isn’t part of Shari’a even if it does enforce Shari’a.

That court system may be complicated. Shari’a laws are divided into two groups: those dealing with ritual religious matters and those dealing with human interactions (commerce, trade, marriage, inheritance, war, treaties, crime, etc.) A major issue for Muslims is whether an Islamic government should enforce the rules that govern personal piety. Do you have a special religious police to make sure people fast and pray? And do you have special courts for this? Traditional Muslim societies effectively had at least three different types of “court.” One group judged in cases of the specific laws designated by the term Shari’a. A second group judged in cases of the specific laws made by the ruler. A third, informal type, was made of tribe or clan elders judging matters of pre-Islamic traditional law.

Moreover all the existing Shari’a laws taken together do not even approach being comprehensive enough to govern a modern state. Indeed the last Shari’a law was discovered (not made, only God makes Shari’a) in the 13th century. So who is going to make all the laws you need today? Do you turn to a group of religious experts? Do you turn to an elected legislature? (Iran uses both.) Put another way, Shari’a does not designate the form government an Islamic state should have. So there will be plenty of work for a democratically elected legislature just to write a constitution.

In the end, to be clear, the declarations by Mr. Abdul-Jalil in Libya, or the Ennahda party in Tunesia, do not have any meaning yet. They are like promises that these new states will be prosperous, or free, or egalitarian, or democratic. What these words mean, like the words “Islamic” and “Shari’a,” will only be determined when governments are actually formed, constitutions are drawn up, institutions of state are implemented, and finally specific laws are passed. The result may turn out to be entirely satisfactory from the standpoint of human freedom and human rights. Or it may be terrible and oppressive. But BOTH of those outcomes have been and will be possible within a state that is Islamic and based on Shari’a, just as both are possible in states that are Democratic and Christian. Neither ideology nor religion determine how a society works, that belongs to the people of that society alone as they interpret their beliefs into behavior.

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