Monday, February 07, 2005

Islamic Law, Modern Critique, and Moral Choices

The democratization process in Nigeria, ushered with the demise of Gen. Abacha in 1998, brought with it new demands for the implementation of shari'ah (Islamic Law). By 1999. several Northern Nigerian states announced plans to adopt shari'ah code. The announcements created an uproar and civil strife, and resulted in fatal clashes between Muslims and Christians.

The issue of the implementation of shari'ah resurfaced again in 2002, when a shari'ah court sentenced Amina Lawal to death after being found guilty of adulterous relationship. The case generated great interest, and the shari'ah court's decision was met with international protest and condemnation. Many in the West saw death as an excessive and cruel punishment for an act that falls within the realm of individual and private choice in modern culture.

The opposition to the shari'ah court's ruling was not confined to western societies, but was shared by many Muslims. Muslim scholars and jurists of repute found many flaws in the shari'ah court's judgment. The court did not, for instance, give due attention to due process, including a forced confession the police took from the accused. Although the lower court decision was overturned by the court of appeal, the case generated fierce debate, and the suitability of Islamic law for modern application became an issue.

To address this issue, the Center for the Study of Islam and Democracy (CSID) and the Centre for Islamic Legal Studies (CILS) organized a conference on the implementation of shari'ah, held in Abuja, Nigeria, in July 2004. The proceedings capture the important debate that revolves around Islamic law and its application. The debate touches on a wide range of issues that are likely to define the direction and nature of the profound transformations taking place in Muslim societies, which have also far-reaching implications for the future development of Western society.

At the heart of the debate lies the question of how democracy relates to law, Islamic values, and culture. The Nigerian experimentation with shari'ah is directly linked to the popular choices in various Muslim societies, and to the right of Muslims to embrace a legal system rooted in their moral choices and cultural heritage. These popular choices are the source of apprehension among Western policy makers, as they provide a reminder that increased demand for democracy in Muslim societies are likely to bring about norms and practices rooted in Islam and Islamic law and morality. Democratization in Nigeria, Iraq, Iran, Malaysia, and Turkey has been associated with the affirmation of Islamic choices.

More particularly, Western apprehension relates to the radical expression of Islam, including the implications of reasserting Islam and adopting shari'ah for non-Muslims and women. While these concerns are legitimate, and have been highlighted by actual developments on the ground, they are greatly exaggerated, and apparently influenced by faulty interpretations, extrapolation from one socio-cultural experience to another, as well as cultural and ideological distortions.

In the mind of many, shari'ah is associated with severe penal code that includes stoning, hand cutting, and corporal punishment. While the penal code is part of the historical shari'ah, it does not encompass the entire realm of shari’ah ruling, but rather constitutes a small and limited area of Islamic law. Shari'ah also covers basic Islamic values, including emphasis on fair treatment, honesty, charity to the poor and needy, care and support of neighbors and kin, honor of promises and contracts, obligation to parents, children, relatives, and spouses, etc. Shari'ah, further, includes prohibition of extra marital relations, of usury, mispresentation, exploitation, etc. Some shari’ah principles have moral bearings, while others have legal consequences as well.

The challenge facing modern Muslim society is how to reapply the principles of shari'ah in markedly different social and political context than those existed during the historical articulation of shari'ah. This aspect of shari'ah is debated in academic and intellectual circles in Muslim societies. However, in the absence of an open political debate, little has been done to educate the public on these issues, and to deliberate the relevance of shari'ah to cultural and legal practices. In addition, there is a significant debate in academic quarters about the historicity, even the authenticity, of certain historical pronouncements of shari'ah. For example, there is a credible evidence and considered opinion to suggest that stoning and apostacy punishments are not an intrinsic shari'ah principles, as they have no basis in the Qur’an, the most fundamental source of Islamic norms.

While some opposition to the implementation of shari'ah comes from quarters opposed to Islam, Muslim scholars and jurist have expressed genuine and profound concerns regarding any direct and uncritical application of historical shari'ah rules. Concerns include the lack of clear delineation between the moral and the legal in Islamic law. What parts of shari'ah are moral, and hence fall within the realm of education and voluntary compliance, and what parts are legal, and can therefore be enforced by society? The question of delineating the legal and moral also relate to the issue of state intrusion into individual privacy, and to what extent can the state police individual morality? Also of concern is the question of due process, rules of evidence, and individual privacy. To what extent can the court rely on circumstantial evidence to convict a person of a crime he or she has not voluntarily confessed? Is it proper for a shari'ah court to make ruling without ever considering mitigating circumstances? This latter concern emerged in the case of Amina Lawal, and in a previous case in which a Nigerian Islamic court convicted a woman of committing adultery, discarding her plea that she was raped.

As the debate in the Nigeria Conference reveals, the scope of the contending perspectives is wide, and ideas about how Islamic norms and heritage relate to modern society are as varied as those debated in Western societies. The debate should be encouraged and must continue, as openness and dialogue are the best guarantor that radical expressions do not go unchallenged, and that claims to authenticity by extreme voices are addressed and handled appropriately. Open debate, and the freedom to put popular choices to the test of time, as long as they do not infringe on human rights and human dignity, have been crucial for the maturation of Western democracy. The maturation of Islamic democracy and law requires similar space of freedom and democracy. The dialectical relationship between theory and practice, as experienced through trial and error, is crucial for political and legal development, and can only proceed if sufficient moral and political space is created within the political system of Muslim societies.

Nigeria Conference on the implementation of shari'ah reveals deep awareness by major players in Nigeria of the historicity of shari'ah rules, and the need to contextualize the rule making process, and critically examine sources and methods. Indeed, a great deal of confusion about shari'ah rules and their application comes from the failure to recognize that shari'ah rules and doctrines are essentially moral, and that legal rules were historically derived from local customs and moral choices rooted in community practices.

Finally, Western societies and policy makers need to understand that Muslim societies and law makers have every right to reconcile their legal system and moral values. This basically means that westerners should cease using alarmist tone and sweeping condemnations of shari'ah, and should pay a closer attention to the lively debate taking place within Muslim societies on law and morality. While every human being, regardless of their nationality and religion have every right to be critical of practices they deem immoral, inhumane, and degrading to human life and dignity, no culture or religion has the right to dismiss off hand the capacity of other religions and cultures to develop, through an open political process and engaging dialogue, their own moral and legal systems.

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