As we reflect on Sharia, family law, secular state and democracy, having Nigeria in the foreground, I wish to come to this discourse with my recently published book, a great contribution and resource for understanding–first hand and from the perspective of a
non-Muslim, particularly a Christian–the realities and potentials of Sharia in a secular democracy.

The book is titled The Legal Inequality Of Muslim and Christian Marriages in Nigeria: Constitutionally Established Judicial Discrimination and it makes contributions from the angle of family law and marriage. It argues principally that the practice of Sharia dislocates the principle of secularity which is supposed to inspire and animate Nigerian Democracy. It examines the religious and cultural self-determination the Nigerian constitution allows Muslims in family law from the background of the principles of equality of citizens and religious freedom, the axles on which any healthy democracy operates.

Sovereignty, or Supremacy?

The constitution recognizes Islamic marriage as an independent and sovereign system of marriage with its formation and matrimonial causes regulated independent of the ordinary secular government institutions to which other religious marriages such as the Christian ones are subjected. That traditional religion is placed on the same status with Islamic marriage is ineffectual, because traditional religion is dying out. Its members are converting to either Christianity or Islam, the two dominant religions in the country and with numerical parity. Moreover, traditional religion has no developed judicial, legislative and executive institutions as to conflict with the secularity of the democracy.

This is not the case with the Sharia system whose judicial, legislative, and even executive institutions operate often in conflict with the ordinary institutions of the federal government. For instance, the operations of the Hisba, the Islamic police in some Sharia compliant states go contrary to the provisions of the Police Act of the federation. The independence and sovereignty these parallel Islamic institutions enjoy make the Sharia in fact superior to the constitution which is supposed to be the supreme law of the land. Everything about Islamic marriage is regulated by the Sharia; whereas everything about the marriage of Christians and others is regulated by the state through the marriage statutes.

The Sharia determines who, where, when, and how a Muslim will marry; whereas the National Assembly determines who, where, when and how a Christian will marry. To marry, Christians have to pay fees to the government, whereas Muslims do not. Christians also have to have their places of worship licensed by the government, while Muslims do not. Where they have no place of worship licensed, they are to exchange their marriage vows before a marriage officer who could be a Muslim. Islamic matrimonial causes are handled by Sharia courts without deference to secular state institutions whereas Christian marriage tribunals are administered subject to the prior competence of the institutions of the secular state.

Juridical Pluralism, or Socio-political Schizophrenia?

The book brings out the fact that the religious/cultural self-determination granted to Sharia marriage has created two independent juridic communities–the theocratic and the secular –in the same geographical and political territory. Muslims follow their religious law and non-Muslims must follow statutory regulations of their marriage. An example is the case of the Muslim senator who married a 13-year girl in contravention of the federal law relative to the marriage age. His defense was that he was bound by the Sharia–which allows even a younger age–and not by the statute evidently passed by him in the senate.

While this situation flies flagrantly in the face of the rule of law, as it breaches the equality of the citizens before the ordinary law of the realm, it also undermines the equality of the religions of the citizens under a secular state. As a result, the National Assembly loses its significance as the superior legislative institution for everybody in the state, as its competence in matters of marriage is reduced to sectional jurisdiction over non-Muslims alone. To the extent that the acts of the National Assembly do not bind Muslims, the National Assembly becomes an instrument of domination and oppression in the hands of Muslim legislators. A legislator whose constituency is not subject to a bill has no motivation to be sincere, fair and sensitive in its legislative process.

The juridic and legislative polarizations between Muslims and non-Muslims, deriving from the religious/cultural self-determination Sharia enjoys, contribute to the social and political schizophrenia that governance in Nigeria has become, as Muslims define their human and civil rights from the point of view of Sharia and the Universal Islamic Declaration of Human Rights (UIDHR) while the rest have theirs from the perspective of the Universal Declaration of Human Rights (UDHR) and the constitution. Often the rules of these two juridic camps are opposed. The case of the Muslim senator remains an example.

Secular Democracy and the Sovereignty of Community

Secular democracy connotes that sovereignty resides in the people not just as disparate individuals, but as a political community that operates together under common institutions, values and objectives. The unity of this community, of course, is not that of uniformity, it is a unity in the essentials and diversity in non-essentials–the essentials referring to those institutions and issues that are best handled by the state for the united existence of the community as one political entity, while the non-essentials point to those important things in the life of the citizens which nonetheless do not directly impinge on the united existence of the state as a political entity. From the legal point of view, this feature of the essentials and non-essentials is reflected in the division between public law and private law, respectively.

The secular nature of a democracy is rooted in the fact that the institutions of public law are as far as possible made independent of the dogmas of any religion in the bid to secure a socio-political space common to all. But with Muslims having their religious/cultural family law institutions running radically parallel to those of the state, both the unity and secularity of the state are impeded, as the public law domain of the state loses its religious neutrality. This is a great political anomaly–and this is the circumstance Nigeria has found herself in. In the case of the senator (supra), despite the undeniable fact that he transgressed the law of the state, he successfully pleaded the superiority of Sharia over acts of the National Assembly. He was not even arrested.

Secular Democracy, Religious Pluralism and Sharia Family Law

The image of a secular democracy is all the more disfigured by the operation of Sharia family law in the country in that Muslims not only have family law institutions that are radically independent of those of the state, but they also derive benefits from the family law institutions of the state. Unlike those of the Christians, Muslim family law institutions are funded by the state. Muslims are not bound by the marriage statutes, yet Muslim legislators participate in their enactment. Muslims do not celebrate their marriage according to the Marriage Act, yet they can function as marriage officers and officiate at the marriage of non-Muslims. While matrimonial causes of Muslims are reserved for Sharia courts, Muslim judges sit in judgment over the marriage causes of non-Muslims.

In the day to day life of the country, the complexity created by this privileged position of Muslims is enormous and destabilizing. A single Muslim automatically constitutes a constitutional super-majority wherever he might be, regardless of the religion and culture of the environment. In a federating state that may be 99% non-Muslim, his personal family law prevails over that of the numerical majority; while where Muslims have the numerical majority, their personal family law translates to territorial law forbidding or restricting unfairly the religion, culture, and family law, of the minorities. As we know, minorities’ rights are an integral part of a secular democracy.

Arguments aimed at justifying the situation in Nigeria by recourse to the colonial history, to the effect that it was the British that created the situation as it is, are flawed according to my argument in this book. Other arguments in support of the religious and cultural self-determination of Muslims, such as the comprehensiveness of the Sharia legal system and the customary nature of Islamic legal system, are shown to be insincere and unconvincing.

The Problem with Pluralism

The situation as it is deals a fatal blow to any efforts of the government in monitoring marriage and family issues. Since whatever happens under Islamic family law is completely outside the competence of the secular state, one wonders how government can monitor, regulate and protect the family as an institution without ceding its powers and functions to Muslim religious leaders. Meaningful policies for the protection of the family institution can only come with comprehensive statistics and data on marriage. In Nigeria, this is impossible because all that the state has is information on the marriages of non-Muslims.

What emerges from my book is that a true secular state must, of necessity, have common institutions, fundamental objectives and values which must be appreciated, pursued and defended by all, irrespective of religion. These fundamental values point to fundamental human rights. The question my book poses for this discussion of Sharia, family law, and democracy is: Is the Sharia concept of human rights consistent with the concept of human rights in a secular state as understood in the light of the Universal Declaration of Human Rights? This is the basic question and a necessary prelude to any broader discussion of Sharia, family law, democracy, and the secular state in order to avoid concepts and words that equivocate.

Editor’s Note: Dr. Jude O. Ezeanokwasa obtained his Ph.D. in Civil Law and Canon Law from the Pontifical Lateran University. Dr. Ezeanokwasa’s book, The Legal Inequality Of Muslim and Christian Marriages in Nigeria: Constitutionally Established Judicial Discrimination, was published by the Edwin Mellen Press in February 2011.

As constitutional law scholar, Garrett Epps describes it the Oklahoma response to the New Jersey decision:

Proponents of 755 say the danger really is imminent. They point to a New Jersey case called S.D. v. M.J.R. In that case, a trial judge refused to issue a restraining order against a Moroccan husband who had repeatedly raped his wife. The judge decided that the man “was operating under his belief that it is, as the husband, his desire to have sex when and whether we wanted to, was something that was consistent with his practices.” Thus, the husband lacked “criminal intent.”

The Appellate Division of the New Jersey Superior Court reversed the decision. It applied Supreme Court precedents showing that religious belief of any kind does not excuse a defendant from obeying “neutral, generally applicable” laws. The court said that the trial judge “determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.” Case closed.

So here’s the danger: a boneheaded decision by a local judge in another state, which was reversed exactly the way it should have been–by the appellate court. Hardly a mortal threat to the nation–and nothing less would justify suspending the Constitution’s guarantees of religious freedom.

Epps is joined in his condemnation of the proposed Oklahoma law by fellow legal scholar, Michael Helfand, who in rejecting the law also points the reality of limited accommodation of religious law in America in the form of religious arbitration tribunals to which parties can voluntarily appeal. As he observes:

Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: “Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There … have been some efforts, I believe, to explore bringing that to America, and it’s dangerous.”

In reality, such arbitration is well established. For nearly half a century, Jewish, Christian and Muslim tribunals have operated in the United States in concert with government courts. These tribunals preside over matters of religious ritual and also apply religious law to a wide range of disputes between individuals and even commercial entities. Parties, in keeping with shared beliefs and values, can voluntarily agree to submit employment, divorce, contractual and various other types of disputes for resolution. State and federal courts currently treat such religious tribunals as they do all other arbitration panels that litigants can seek out as an alternative to going to court. And, as long as the tribunal and its decisions meet certain standards, government courts routinely “confirm” them — that is, render them legally enforceable.

So the reality of “juridical pluralism” of religious and legal norms is not without precedent–or practice–in these United States. Something to keep in mind in considering Shari’a, family, and democracy in Nigeria–and beyond.

The forum was sponsored by the Council on Foreign Relations at its first-ever event at the AAR. Here are some excerpts from Owens’ article, accessible in full at this link:

“In fact, at a recent forum to discuss religious conflict in Nigeria, two experts with deep ties to the country — a Nigerian scholar of religion and an American diplomat — agreed that the country’s problems stem less from religious antagonism than religious opportunism enabled by a weak state. The forum, held in late October during the American Academy of Religion’s annual meeting, was sponsored by the Religion and Foreign Policy Initiative of the Council on Foreign Relations. Jacob Olupona, professor of African religions at Harvard Divinity School, bemoaned his native country’s failure to establish a sense of national identity that could help to bridge Nigerians’ diverse religious, ethnic, and linguistic identities. Unlike Tanzania, whose successful social policies have created a strong national identity, “Nigeria has failed at nation-building,” Olupona said, in part because it has no social security programs to bind citizens together. As evidence, former U.S. Ambassador to Nigeria and current CFR Senior Fellow John Campbell cited a recent poll in which 92% of Nigerian Muslims claimed to identify themselves most strongly with their religion, then with their family/ethnic group, and lastly with their country. (Virtually the same proportion, 87%, of Nigerian Christians said the same.)

So what should be done about this strong sectarian impulse? Olupona began with a reminder that the “religion” at work in this context is a social and cultural phenomenon, not simply a quest for the sacred or transcendent. He recalled that many institutions such as community centers or hospitals that were once simply a part of a village or neighborhood have been rebranded as Muslim or Christian institutions, and that religious justifications were frequently given for actions that also had ethnic and economic causes. But despite the current tension between Christians and Muslims, Olupona counseled the Nigerian government to stay out of the process of interfaith dialogue — at least until it has worked on more basic issues to improve access to healthcare and clean water, and to reduce poverty.

Ambassador Campbell, author of the new book Nigeria: Dancing on the Brink, agreed that the weakness of the Nigerian state was a crucial factor in the recent outbreaks of violence that combined religious, ethnic and economic grievances. But while American policymakers push for a “clean” presidential election in January as a step toward greater democratic legitimacy, he emphasized that the United States has remarkably little leverage over Nigeria. As the world’s sixth-largest oil exporter and a leader in the African Union, Nigeria is the United States’ most important strategic partner in West Africa — and their government does not want us involved in monitoring its elections.

As we watch the events unfold in Africa, keep a careful eye on the shifting national and religious identities — and the rhetoric that masks and reveals them — in Sudan and Nigeria alike. Weak states are dangerous places for citizens, not least because peaceful transitions there are all-too-frequently elusive.”

By Owens’ account, both Campbell and Olupona attribute Nigeria’s troubles to its weak state, rather than to religious or ethnic strife per se. Campbell makes an interesting argument in his excellent new book, Nigeria: Dancing on the Brink, that Nigerians’ reaction to state weaknesss has been “to migrate internally in to the worlds of family, ethnic group and religion.” (p. 109) Indeed, he concludes, “Family, ethnic, and religious identities are trumping a sense of national allegiance in large part because the state no longer addresse the basic concerns and needs of the people.” (p. 138) This would seem to make inquiry into Shari’a, family, and democracy all the more timely and compelling.

Additional Note on Recommended Reading: I have been made aware of another new book that is relevant to our inquiry. This is Shamil Jeppie, Ebrahim Moosa, and Richard Roberts eds., Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges(Amsterdam University Press, July 15, 2010). It sounds like essential reading for this topic.

“Contending Modernities recognizes that the world’s problems in the 21st century — from mass violence and economic injustice to government corruption, environmental degradation, and human rights abuses — will not be solved by secular organizations acting independently of religious communities. The project seeks to develop a rich and nuanced understanding of how religious and secular institutions and individuals interact, for good and ill.

Designed to unfold in stages over several years, Contending Modernities will bring together scholars, educators, and practitioners to pursue pure research that will be applied as participants share findings with religious officials, political and business leaders, nongovernmental and governmental organizations, and the media. The project will begin with a focus on the interaction among the world’s two largest religious communities (Catholics and Muslims) as well as secular people and institutions, and eventually will expand to include all major religions.

The project’s research agenda will inform discussion of sensitive but crucial contemporary issues such as: the proper role of religiously inspired political parties and social movements; debates about gender and the rights of women and children; the conflict between claims to exclusive truth and respect for religious pluralism; bioethical issues ranging from birth control to abortion to genetic engineering; and the tension between religious principles of social justice and the seemingly value-neutral dynamics of a global market economy.”

The project and blog are highly relevant to our inquiry into plural legal and religious norms and how these relate to larger questions of how religious groups and the secular state negotiate modernity–particularly in the context of the family. Stay tuned for cross-postings between our blogs.

Part III:  Sharia and Religious/Cultural Self-determination

As I have argued in the preceding parts of this posting, Sharia principles cannot be state law as such because of the distinction, not dichotomy or hierarchy, between Sharia and state law.  This true, I believe, whether Muslims constitute the predominant majority or minority of the population because the reason is conceptual, not only political.  Sharia cannot be state law because of the religious nature of Sharia, which is inherently and permanently different from state law, which does not claim divine authority.   Other conceptual reasons include the unavoidable need to select among equally legitimate views of Sharia for the purposes of determining positive state law.  The need for the state to definitively set the law and coercively enforce it on the totality of the population subject to its jurisdiction is inconsistent with the religious nature of Sharia because no human being can decided religious truth for human beings. At the same time, however, Muslims can exercise their fundamental democratic right to religious/cultural self-determination through the complementary relationship between Sharia and state.  I will now briefly clarify how this might happen in practice.

In my view, there are three main elements to this framework of religious/cultural self-determination for Muslims:

(1) Private social practice of Sharia within the framework of state law and its constitutional safeguards;

(2) Consideration of Sharia as normative source for state law through civic reason in the democratic political process, without claiming that Sharia can be state law as such;

(3) Religious discourse and cultural transformation to mediate tensions between historical interpretations of Sharia and modern constitutional and human rights principles.

On the first count, Muslims can in fact behave in conformity with the vast majority of Sharia principles without coming into conflict with state law in a democratic society.  For example, Muslims can refrain from taking or charging interest on loans (riba)”, prohibited by Sharia, 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 divorce voluntarily without having those requirements imposed on all by state law.  Space does not permit further elaboration on this, but whatever conflicts or tensions that may exist between Sharia and state law can be mediated through the second two approaches.

The premise of the second count is that, as noted earlier, the law and administration of justice of any state should reflect the ethical values, priorities and interests of the majority, subject to the constitutional rights of the minority or minorities, however small, including members of the Muslim majority who disagree with other Muslims.  Muslims and other religious or cultural communities have the right to organize to act collectively in contributing to the formulation and implementation of public policy and legislation through civic reason and the political process, provided they do not claim to have a monopoly or veto power over such matters, even when acting 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 persuade other citizens of the economic or social benefits of such a ban by giving reasons that all can debate freely, rather than asserting their own religious conviction or cultural affiliation as categorical justification. Muslims can also propose legislation to provide for Sharia principles of marriage and divorce, through the same process and subject to constitutional and human rights safeguards.  This possibility does not mean that Sharia as such can co-exist as a parallel legal system competing with state law of any country, or that it retains its religious authority when incorporated into state law.  In view of the centralized, bureaucratic, and coercive nature of the modern ‘territorial’ state, the secular legislative organs of the state must have exclusive monopoly on enacting state law, and secular judicial administrative organs must also have exclusive authority to interpret and apply state law.

The third and critically important approach to religious/cultural self-determination for Muslims, whether they are the majority or minority of the population of the state where they live, is through Islamic discourse on the interpretation of Sharia in the modern context.  Since what Muslims uphold as Sharia today was the product of human interpretation of the Quran and Sunna of the Prophet, as noted earlier, 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 earlier interpretation of those principles if Muslims accept them as such.  What I call inter-generational consensus was the only manner in which any principle of Sharia came to be established in the past, and remains the valid today.  There is possibility of a human institution that can “declare or amend Islamic doctrine” on behalf of the general Muslim population of the world. (An-Na’im 2008, 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 the purpose here is to explore ways of addressing problematic aspects of historical interpretations of Sharia regarding, for example, the rights of women and freedom of religion. For instance, there is no question that Sharia allows men to take more than one wife, but whether it permits polygamy today or not has been a matter of debate among Muslims scholars and opinion leaders since the 19^th century.  There is also heated debate about the presumed right of a Muslim husband to repudiate his wife universality and without having to show good cause.  Resolving such issues through public debate among Muslims will enhance the legitimacy of state laws prohibiting polygamy and requiring equality between men and women in matters of divorce and its legal consequences.

It must be emphasized in conclusion, however, that none of these approaches would permit Muslims to opt out of the application of secular state law, or have Sharia principles enacted as state law except through the regular democratic process and subject to constitutional safeguards.  Neither would Muslims be entitled to plead Sharia as justification of violation of state law.  Rather, the object is to enable Muslims to exercise their right to religious/cultural self-determination within the framework of state law and its constitutional safeguards, like any other religious/cultural community.  The same or equivalent approaches are equally available to other religious/cultural communities to exercise their right to self-determination within the same framework and subject to the same safeguards.

References:

An-Na’im, Abdullahi Ahmed, 1990, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse University Press).

An-Na’im, Abdullahi Ahmed, 2008 An-Na`im, Islam and the Secular State: Negotiating the Future of Shari`a (Harvard UP).

Part II:  The Argument from Sharia

I should first emphasize that although my argument focuses on current notions of the state and state law as globally applicable ideas that have spread far beyond their European origins, I would emphasize the distinct historical and contextual workings of these institutions throughout the world.  Subject to historical and contextual factors, all human societies today live under the same basic model of the centralized, bureaucratic, hierarchical, territorially bounded so-called “nation states”.  This does not mean that these states are working well everywhere, or that they must  operate in the same way in every setting, but the basic model is the same, as  practiced in the historical  territorial, and demographic context of each country.  It is not possible to evaluate or discuss here the distinctive ways in which state institutions work and evolve in various settings, but the need for such analysis is fully acknowledged.

My general argument is that the nature of Sharia as a religious normative system, on the one hand, and state law as a secular political institution, on the other, requires clear differentiation between the two in theory and separation in practice.  However, the methodological and normative similarities between Sharia and state law, and the fact that they both seek to regulate human behavior in the same social space, raise possibilities of interaction and cross-fertilization between the two.  Methodologically, though Sharia evolved among independent Muslim scholars and their communities, outside state institution, the methods of interpretation the Quran and Sunna – traditions- of the Prophet used by those scholars are similar to modern techniques of textual construction and reasoning by analogy and precedent. (Hallaq 2009, 100-124)  Normative similarities between Sharia and state law can be seen in such fields as property, contracts, and civil liability for damage to or misappropriation of property. (Hallaq 2009, 239-245, 296-306)  It is therefore not difficult to envision a dynamic process of mutual interaction between Sharia and state law principles through what I call ‘civic reason,’ as I will discuss further below.  As a result of such interactions, state law can be legitimized by Sharia among religious believers, while ways in which Muslims perceive and practice the social aspects of Sharia can be influenced by constitutional and human rights norms.

For that possibility of positive interaction, however, it must be clear that Sharia as such cannot be enforced as state law and remain religiously authoritative for Muslims for the following reasons:  First, whatever the state enforces is bound to be the view of the ruling elite of the rules of Sharia they choose to apply and never Sharia itself because any human understanding of Sharia is only human and cannot be divine or religious as such.  Second, since the ruling elite will have to select from among equally legitimate competing views of the rules of Sharia, as interpreted by Muslim scholars over time, state officials would be coercively enforcing their choice upon the Muslim population, regardless of what those Muslims believe Sharia to be on the issue at hand.   For instance, Wahabi Sunnis of Saudi Arabia are imposing their views on Shia citizens of the country who believe the Wahabi view to be heretical.  Imami Shia rulers of Iran are imposing their views of Sharia on citizens of Iran who disagree with the official state ideology of the state.  Third, whatever is being enforced through state law and administration of justice is authorized by the coercive power of the state, and not the religious validity of the rule.  Since it is impossible to enforce the totality of Sharia, according to all possible interpretations, some aspects would be enforced because the state decreed that, while others will remain unenforced because the state so determined.

It is therefore clear that the outcome of state enforcement will always be secular, not religious, regardless of claims of the state in some Muslim-majority countries like Iran or Saudi Arabia that it is enforcing Sharia as state law. (An-Na’im 2008, pp. 30-36) Muslim citizens may influence formulation of state law and public policy from a Sharia perspective if they can summon sufficient political support of such propositions through the democratic political process, but that does not mean that the norms so incorporated into state law are still religious norms. Sharia norms can be one of the normative sources from which state law is derived but not cannot as such constitute state law because Muslims believed them to be Sharia.

This view does not dispute the religious authority of Sharia, which must necessarily exist outside the framework of the state.  As a Muslim, I believe Sharia is always relevant and binding on Muslims, but only as each of us believes it to be and not as declared and coercively enforced by the state.  For any act to be religiously valid, the individual believer must comply voluntarily, with the necessary pious intent (nya), and without violating the rights of others.  This focus on the individual believer is integral to Islam. (The Quran, 6:164; 17:15; 35:18; 39:7; 52:21; 74:38; Taha 1987, 62-77)  Still, principles of Sharia should be relevant to the public discourse, 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 will of God.  By civic reason I mean that the rationale and purpose of public policy or legislation is based on the sort of reasoning that the generality of citizens can accept or reject, which cannot happen when such matters are demanded as categorical religious mandate.  The process of civic reason also requires conformity with constitutional and human rights standards in the adoption and implementation of public policy and legislation. All citizens must be able to make their own legislative proposal or object to what others are proposing through public and fully inclusive public debate, without having to challenge each others’ religious convictions. Moreover, by its nature and rationale, civic reason is not limited to Sharia principles and can apply to other religious normative systems. Civic reason and reasoning, not personal beliefs and motivation, are necessary whether Muslims or members of any other religion or tradition, constitute the majority or the minority of the population of the state. (An-Na’im 2008, 92-101)

I am suggesting that these two types of relationships can exist between Sharia and state law when the two systems apply to the same human subjects within the same space and time.  It may therefore be helpful to see Sharia and state law as complementary but different normative systems, instead of requiring either to conform to the nature and role of the other.  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 same space and apply to the same human subjects.  If state law incorporates a principle of Sharia for coercive enforcement by state courts and executive powers, the outcome is a matter of state law and not Sharia because it will not have the religious significance of compliance with a religious obligation.  Conversely, compliance with Sharia cannot provide legal justification for violating state law.  For Sharia and state law to be complementary, instead of being mutually antagonistic, each system must operate on its own terms and within its field of competence and authority.

References:

An-Na’im, Abdullahi Ahmed, 2008 An-Na`im, Islam and the Secular State: Negotiating the Future of Shari`a (Harvard UP).

Hallaq, Wael B., 2009, Shari^ca: Theory, Practice, Transformations (Cambridge University Press).

Taha, Mahmoud Mohamed, 1987, The Second Message of Islam (Syracuse, NY: Syracuse University Press).

Part I: A General Framework
The position I am advancing in my contribution to this project is that Sharia (the normative system of Islam) cannot, and not only should not, be enforced as the law of the state, even where Muslims constitute the predominant majority of the population.  This view is premised on the religious nature of Sharia itself, as I will briefly explain below, but also indicated by the nature of the state where all Muslims live today.  I will begin in this brief piece with a statement of the general framework of the relevance of religious and customary norms to modern legal systems, and then present my Islamic argument against the fallacy that Sharia can ever be enforced as state law.

I should note in relation to the broader concept and scope of this project on religion, family and democracy that the argument I am presenting here is probably applicable to other religious and customary law traditions.  However, I will limit my remarks here to the relationship between Sharia and state law in particular not only because this is the focus of my own work, but also as a matter on which I hope to make a difference as a Muslim from Sudan who has closely witnessed the tragic consequences of confusion among present-day Muslims on this question.  My aim is therefore to address this specific question for its relevant to Muslims throughout the world, including Nigeria which is the primary case study for this project.  I also hope, however, that what I have to say about Sharia and state law can be helpful in clarifying the relationship between religious and customary law in general and state law.

The premise of the general framework of the relevance of Sharia (and other religious or customary norms) to family law is that the law and administration of justice of any state should reflect the values, priority concerns and interests of the population. In that process of self-governance, the democratic principle indicates that the political will of the majority of the population should prevail in such matters, subject to the constitutional rights of the minority or minorities. Religious, ethnic and other communities have the right to organize and act collectively in contributing to the formulation and implementation of public policy and legislation through the democratic political process, but such collective action should not have a monopoly or veto power over such matters, even when acting in the name of the predominant majority of the population. The importance of this limitation of the will of the majority with the rights of the minority is in converse relationship to the predominance of the majority, that is, the larger and stronger the majority the more important it is to subject its political will to the constitutional rights of the minority or minorities.  Another aspect of this approach is that notions of majority and minority are not only fluid, contingent, and contested, but also relative to structural and contextual power relations.  Notions of majority and minority are ambiguous because we are all members of the majority of our societies in some respects, and members of minorities in other respects.  I may be in the majority in ethnic or religious terms, but in the minority in political terms, or vice versa.  A numerical minority can be a political majority, as was clearly seen in the case of Apartheid 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 of majority rule subject to rights of minorities are so foundational for social and political organization in all human societies, everywhere, that none of us can 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 our collective name, until we can change them through the same democratic political process that is made possible by constitutional limitations on the prevalent political will of the day.  The basic moral and political justification of majority rule, I believe, is the possibility for the political minority of today to become the political majority of tomorrow.  For that to be a plausible possibility for minorities to engage in the legitimate and peaceful political process, instead of resorting to violent rebellion or submitting to dehumanizing apathy and subordination, the constitutional rights of all citizens must be equally vigorously protected by and for all of us, because each of us do need these rights for ourselves and our communities, even when that may seem unnecessary for those in power at the time.  The basic principle to emphasize here is that the more vulnerable and politically or socially marginalized a person or group is, the more deserving of the protection of constitutional 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 in reflecting the reality of normative diversity, with a moral and political commitment to respecting that diversity, while preserving the integrity of the uniformity of state legal systems.  The term “religious” includes native/traditional religions and customary normative systems.  My focus on family law is due to the fact that it is probably the most widely practiced or proposed field of religious/customary law for application through state legal systems.  Accordingly, the term “law” here refers to rules governing family relations under state legal systems, as distinguished from other normative systems in a broader sense.  In other words, when religious or customary norms are enforced as state law, they are no longer religious or customary.  This means that the religious or customary rationale of the norms should not be invoked to lend additional authority to what is really an integral part of secular state law.  In this light, I would challenge invoking religious or customary authority to exempt family law from constitutional and human rights limitations on all aspects of state law.

This point is important for the distinction I am drawing between state law and religious or customary normative systems as two different and separate types of systems that should not be confused by calling all of them “law”.  Norms regulating family relations can be religious or customary as long as they are not enforced through state law, but  once so enforced they become  simply state law rules, regardless of their perceived religious or customary sources.  This is not to suggest or imply that state law is superior or more effective than other normative systems.  On the contrary, religious and customary norms may often be more effective than state law in shaping the behavior of believers or members of a community.  Rather, the point is that since the source and authority of state law are different from that of religious normative systems, it is confusing to use the term “law” for both types of normative systems.  It seems that preference for the term “law” is to indicate the sense of binding norms that seek to regulate human behavior and organize social institutions.  But this purpose can be realized by using the term “normative system”, as rules that are binding and authoritative in a different manner than state 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 any society, but the two types of systems should be distinguished from each in order to better regulate their dialectic relations. For instance, religious norms can enhance the legitimacy and efficacy of state law which, in turn, may facilitate compliance with religious and customary norms among their respective communities.  At the same time, however, state law may need to intervene to bring community-based compliance into conformity with constitutional and human rights standards.  For the purposes of such regulation and mediation of competing normative claims, the state may seek to influence social change by facilitating internal cultural transformation, as I will briefly explain later in Part III of this posting, but should not attempt to achieve its legitimate objectives coercively. The less normative change is intrusive and more reliant on internal agents of social change the more effective and sustainable will the outcome be.

Fish predicts that such accommodation will be less than satisfactory to any religious minority whose faith operates as “comprehensive doctrines” in the Rawlsian sense or, quoting Abdullahi An-Na’im, “encompasses all aspects of public and private law, hygiene, and even courtesy and good manners.” The implication is that such comprehensive religions are incapable of meeting such accommodation by the secular state in the middle, so to speak, by any moderation of their scope and tenets.

And yet, a New York Times article just three years ago suggested that Nigeria was home to a more moderate type of shari’a than exists in other parts of the world, having settled into a “distinctively Nigerian compromise between the dictates of faith and the chaotic realities of modern life in an impoverished, developing nation.” In his afterword to the Ahdar and Aroney volume, John Witte suggests that such moderation is both likely and necessary for shari’a in the secular state. Is Nigerian shari’a a more moderate form of shari’a? If so, how does that sit with the secular state or fit with the continuing narratives of inter-religious and inter-communal violence that continue to bedevil the Nigeria’s fragile democracy?