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Chapter Seven – The Rule Of Law, Inshallah- from Part II – Struggles of a Broken Nation, 1991–2021 in Shari‘a, Inshallah: Finding God in Somali Legal Politics

The president of Afghanistan, Ashraf Ghani, has called the rule of law the glue that binds state and society together. But this glue erodes easily. As the previous chapters have shown, practices and institutions associated with the rule of law are as broken, inconsistent, and discordant as the Horn of Africa’s many Islamic states and their colonial, authoritarian, and democratic architects have been. Throughout the Horn of Africa’s history, political elites – colonial administrators, democratically elected officials, authoritarian rulers, aqils, sultans, sheikhs, international lawyers, and foreign aid workers – have sought to resolve people’s disputes, write constitutions, draft laws, construct law schools, build prisons, and reform courts.

Author

Mark Fathi Massoud

Type

Chapter

Information

Shari‘a, Inshallah: Finding God in Somali Legal Politics

, pp. 289 – 309

DOI: https://doi.org/10.1017/9781108965989.009

Publisher: Cambridge University Press

Print publication year: 2021

BOOK CHAPTER

CHAPTER SEVEN – The Rule Of Law, Inshallah

From Part II – Struggles of a Broken Nation, 1991–2021

Shari‘a Inshallah Finding God in Somali Legal PoliticsPublished online by Cambridge University Press:  13 May 2021

By Mark Fathi Massoud


Mark Fathi MassoudMark Fathi Massoud is a Professor of Politics and Legal Studies at the University of California, Santa Cruz. He is the author of Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan. He has held Carnegie, Guggenheim, and Mellon Foundation Fellowships.


In this chapter

INTRODUCTION

RELIGION AND LAW

SomlegalAds

SHARI‘A AS THE RULE OF LAW

SHARI‘A POLITICS AS LEGAL POLITICS

THE RULE OF LAW AS A THEOLOGY

Appendix A – Methodological Detail

Appendix B – Archives And Libraries Visited

Appendix C – Interview List

Bibliography

INTRODUCTION

We have been colonized [and] denigrated. But we never lost our humanity.

Somali aid worker in Nairobi[1]

 

The only weapon we have is Allah.

Sheikh in Hargeisa[2]

Shari‘a Inshallah Finding God in Somali Legal Politics
Somaliland (national border as claimed by Somaliland), 1991–present.

Walking the narrow, crowded aisles of Hargeisa’s central market, one cannot miss the moneychangers. These young men sit on plastic stools behind tall stacks of unguarded cash, shifting their gazes between their mobile phones and nearby shopkeepers. I have seen moneychangers relax their postures and gently shut their eyes for a while, without any noticeable fear of getting robbed. “There must be a rule of law somewhere,” a Somali researcher once told me. He paused, reflecting on the comment, and continued. “It’s the people.”[3]

The president of Afghanistan, Ashraf Ghani, has called the rule of law the glue that binds state and society together.[4] But this glue erodes easily. As the previous chapters have shown, practices and institutions associated with the rule of law are as broken, inconsistent, and discordant as the Horn of Africa’s many Islamic states and their colonial, authoritarian, and democratic architects have been. Throughout the Horn of Africa’s history, political elites – colonial administrators, democratically elected officials, authoritarian rulers, aqils, sultans, sheikhs, international lawyers, and foreign aid workers – have sought to resolve people’s disputes, write constitutions, draft laws, construct law schools, build prisons, and reform courts. Similar tools of legal politics have also been essential in attempts to rebuild the Somali state since its 1991 collapse.

But, as this book has demonstrated, one cannot disentangle legal politics from religious politics, for political and legal actors have long co-opted shari‘a’s power. Historically and still today, they put differing varieties of Islam in the service of their own governance and development projects. They justified their work by promoting their own versions of shari‘a and by hiding or disarming other versions. Women’s rights activists, too, invoked their own version of shari‘a. Just as United Nations agencies’ views of the rule of law differ from those of many Somalis, so too do Somalis’ understandings of shari‘a differ. Shari‘a is a concept flexible enough to support the rule of law on one hand even as militants invoke their version of it on the other hand. State actors, institutions, and political elites all breathe meaning into shari‘a, revealing its diversity and ability to be different things to different people. In the Horn of Africa, religious faith has not only been used to perpetrate violence. It has also been used to nurture peace, dignity, gender equality, and the rule of law. But the process of coding shari‘a as law then merging it with the state – the secularization process – has tended to create rather than to resolve social conflict.

Legal institutions that have labeled Islam a threat are often the same ones that have embedded a different version of Islam, or of some other faith, into their work. In Somaliland and Somalia, as in the colonial and postcolonial history of the US and other nations, religion has not only reinforced the state’s rules and norms, but also generated them. In that sense, religion is not separate from the state. It is embedded in the state’s foundation, even – and especially – in states that call themselves secular. The question for believers in the rule of law is not so much how to ensure the freedom of religion in secular states as how to ensure religious belief continues to provide the source material for political freedom itself. In this context, shari‘a offers hope.

This concluding chapter amplifies three bold propositions about religion and the rule of law:

  • The rule of law has its roots in religion when political elites use religious principles to build peace and stable states (examined in the next two sections, “Religion and Law” and “Shari‘a as the Rule of Law”).
  • Religion does not always promote the rule of law, precisely because political elites invoke religious discourse or God’s will instrumentally as tools of legal politics (examined in the third section, “Shari‘a Politics as Legal Politics”).
  • The rule of law offers its own systematically developed and internally coherent theory of a higher power, which – to the pious – makes it an alternative form of theology (examined in the final section, “The Rule of Law as Theology”).

RELIGION AND LAW

My investigation of Somaliland and Somalia provides insight into the ways in which religion, law, and politics intersect in other contexts and times. These findings are as critical to understanding how colonies and dictatorships suppress dissent as they are to understanding how democracies struggle under pandemic, populism, and racism. Like the law, religion provides symbols, meanings, and idioms to those who use it to achieve their political, economic, and social goals. People in many places turn toward, rather than away from, religious values to shape law and politics. For those who believe in human rights and the rule of law, trouble begins when political elites invoke religion in order to put down dissent, constrain activism, or mistreat minorities. But religion – even the religion of a majority – can sometimes serve as a check on power and a source of strategy and hope for activists who work on behalf of marginalized populations.

Political elites have used and manipulated religious principles for centuries. The pagan religions of antiquity gave birth to Roman law and the “concept of ius, from which justice, jurisprudence, judge, and judiciary come.”[5] From Roman law arose Western legal cultures and canon law. In pre-modern settings, judges accounted for their verdicts before God.[6] In early modern Europe and North America, political elites building new states used what they called Christian law and ethics to develop legal systems and compel obedience to the rule of law. Christianity was, in the words of political historian Francis Fukuyama, “intimately bound up with the development of the … European state and with the emergence of … the rule of law.”[7] This book has shown that the widespread and longstanding assumptions that people trying to build Islamic states do not follow this pattern, and that Islam is antithetical to the rule of law, do not hold.

Eventually Islam, like Christianity, can become the root of state law and the foundation upon which to build the rule of law. Rights-oriented, militant, and other versions of shari‘a are not new; each reiterates an older version, making theology, like politics and law, a lived tradition. It continually changes as people reinterpret God’s will for their own places and times. As people build social worlds they would like to inhabit, they confront, entangle, and pull apart law and theology. Examining a state legal system’s historical emergence and logic (such as it is) requires going “inside the system” to understand the diversity of legal actors and the tools they use.[8] My investigation of the modern history of the Horn of Africa reveals that shari‘a, even when it seems absent, powerfully informs how people shape states, societies, and their laws.

Classical sociologists of law have speculated that human thought, industry, and law derive from God; this book has shown how people build societies into states either out of the belief that they are doing God’s will or, cynically, by exploiting or disregarding God’s will for personal and political power.[9] Using religion to build states, and then separating law from religion, is a colonial project. British legal philosophers Hale and Blackstone long ago saw how Christianity pervaded British state law; later, colonial officials – among others, the British in Sudan and the Portuguese in Guinea-Bissau – constructed mosques to prop up religious institutions in order to surveil their political activities. This interpenetration of law and religion is a primary sign of modernism, and can still be found around the world in appeals to Hinduism in Indian law, Judaism in Israeli law, Eastern Orthodox Christianity in Russian law and politics, Buddhism in Sri Lanka’s and Myanmar’s legal systems, Catholicism in Latin American courts and legislation, and Protestant Christianity in US and European law and politics. Too often, though, the most vocal defenders of faith seek to restrict, rather than to promote, political freedoms. But, while they use statements of religious faith or dogma to oppress, others use theological principles to dissent. They turn to their faith to create, abide by, and support principles that liberal lawmakers associate with peacebuilding, international law, and the protection of human rights.

But religion is not merely a colonial or postcolonial political fantasy. It is also a cultural thread woven into daily life. As legal scholar Rafael Domingo has argued, “God has … legal relevance that cannot be ignored [even] by secular legal systems.”[10] In some places, majorities of citizens do not see religion as problematic because their religions represent the dominant political culture. Catholicism in Ireland, Hindutva (or Hindu nationalism) in India,[11] Judaism in Israel, and Buddhism in Bhutan fit this description; in Pakistan, state leaders have portrayed Pakistanis as united by faith (Islam) and language (Urdu).[12]In these places, religious, ethnic, and linguistic minorities continue to fight for their security. But faith has also guided political resistance, as people align their faith with many ideals, not only conservative and restrictive but also moderate and progressive.[13]

In India, a superficially secular apparatus that disguises Hindu nationalism has also based its survival in part on ensuring that Muslim minorities resolve family disputes in religious courts, called dar ul qazaas. The result is that “Indian state secularism needs the Islamic non-state” to survive.[14] The state has ceded some of its functions to judges of these tribunals, who themselves are nonstate actors. In Egypt and Turkey, the state has regulated, surveilled, and exerted control over religious leaders and institutions. In Nigeria, concern over shari‘a likewise was essential to producing the country’s “second republic” in the 1980s. Shari‘a remains important throughout the country, especially in Nigeria’s Muslim-majority north, where people see it as embodying an idealized, utopian past and think that, if only shari‘a were implemented properly, it would rectify present-day social injustices.[15] By coding shari‘a as law – as British colonial officials and Somali political elites have done in the Horn of Africa – these states have made their legal systems look inclusive. This action has also enabled them to use shari‘a as they wished. They saw Islam as potentially defeating the state, so they subsumed it and then built another system over it, never giving it much of a chance.

The struggle to understand God’s will can lead to equally harmful or helpful results. It has produced, in the words of political scientist Cecelia Lynch, “the cruelest kinds of human bondage.”[16] Pope Urban II, for instance, used the Latin phrase, Deus vult (God wills it) in 1095 to launch the Crusades against Muslims. But religious discourse has also been the foundation of local peacebuilding initiatives and attitudes favorable to liberal democracy in the world’s highest-conflict regions.[17]

Religious faith has advanced human rights and social change in the US too. Christianity, Islam, Judaism, and other faith traditions have motivated many American activists to speak out against racial discrimination and police violence, in the Civil Rights Movement of the 1950s and 1960s and in the Black Lives Matter movement of the 2010s and 2020s.[18] When national and state laws have failed to live up to religious ethics and morality, civil rights defenders have fought back against those laws, in some cases submitting to arrest and imprisonment. Jehovah’s Witnesses have taken cases to the US Supreme Court to expand American free speech protections. Progressive Christian denominations have promoted equality on the basis of gender identity. More recently, Muslims in the US have responded to domestic anti-shari‘a legislation and anti-Muslim hate by merging US constitutional law with shari‘a to promote social and economic justice for minorities and the poor.[19]

Morocco, Tunisia, and Pakistan each expanded constitutional rights to gender equality through shari‘a, using progressive feminist interpretations of Islam to reform key laws. Catholic theology contributed to the development of human rights law in the mid-twentieth century and the repudiation of communist regimes in Eastern Europe in the late twentieth century.[20] To help change cultural values and create new laws, Orthodox Christian Patriarch Bartholomew I of Constantinople defined environmental harm as sin, asserting that nations that “degrade the integrity of the earth and contaminate the planet’s waters, land and air” offend God. In Israel, some Jews have fought the rise of populist nationalism and a “clear movement towards authoritarianism” by using Hebrew law to promote tolerance and oppose systematic discrimination against Arab minorities.[21]

In Muslim-majority states, the problem is not shari‘a, it is what people have done with it. Shari‘a, like other forms of religious law, can be both the foundation of the legal system and an ethical guide to challenging and reforming the law, an important “check on political power.”[22] Even the occupying US administration in Iraq allowed Iraqis to write Islam into their constitution in 2005, subsuming legal pluralism, helping to create a unified state authority, and making religion a constitutional anchor for civil rights. The leaders of Sudan’s 2019 revolution, after toppling the thirty-year authoritarian regime of President Omar Hassan al-Bashir, reminded the country’s Muslim religious leaders that it was their “sacred duty” to promote harmony and compassion, emphasizing that “We were created from the same soul, so we must protect this soul in order to protect” the democratic transition.[23]

Like Sudan’s revolutionary leaders, women in Afghanistan after the Taliban’s 2001 collapse also laid claim “to a hegemonic religious discourse that has historically excluded them.”[24] In particular, and much like women in the Horn of Africa, they have consistently rendered their knowledge legible in Islamic terms. But, as with foreign donors in Somaliland and Somalia, donors in Afghanistan gave shari‘a “startlingly little attention” as they tried “to foster civil society without offending religious sensibilities … Islam [remains] the elephant in the NGO seminar rooms.”[25] Such donors still treat religion as an impediment to building the rule of law.

Reflecting on decades of research on the legal profession, including his own, sociologist Terry Halliday explained, “An unexpected finding recurred. When we went looking for lawyers and liberalism, we … found religion. When we observed barristers, we saw priests …, ministers and imams. When we studied bar associations, we encountered churches and mosques. When we analyzed jurisprudence, we were … confronted with theology.”[26] As Terry Halliday found in his own work, this study of legal politics and my own search for the rule of law in the Horn of Africa has revealed the enduring reach of shari‘a. Religious persons, faith, and discourses constructed – not just destroyed – peace, states, and legal systems. The twists and turns of Somali history – through customary law, colonialism, religious resistance to Siad Barre’s dictatorship, and peacebuilding efforts in Somaliland and Somalia – illuminate how shari‘a thrives in the struggle to build legal and social order. Political leaders, militants, feminist activists, and aid workers have all engaged with God, even in times of disorienting political violence when God was hard to find. Collectively these persons have invoked shari‘a, compartmentalized it, hidden it, sought to impose some version of it, integrated it into political systems, justified decisions with it, or fought for freedom with it. As they struggled to achieve their own version of a good society, shari‘a became a source not only of their anguish but also of their hope.

SHARI‘A AS THE RULE OF LAW

Shari‘a informs and exists alongside other ethical and legal systems that compete for people’s attention and trust. It has come to matter in domestic politics not because extremists use it as a pretext for violence but because legal professionals use it as a mechanism to deliver justice and create limited governments. Somali history shows how some people have tried to hold their communities and governments together through a shared submission to God’s will, or at least a shared assertion that their political positions are consistent with what God has willed. Semantically and practically, these people unify the values of the rule of law with the values of shari‘a. For them, the rule of shari‘a is the rule of law.

Shari‘a can break states. It can also make them. In times when the ideal of the rule of law, and even the state itself, was absent, piety provided the moral accountability that state law could not. Somali society functioned, and moneychangers continued to work without fear of being robbed “because [we] are Muslim and … must accept shari‘a,” as one lawyer told me.[27] Because some interpretations of shari‘a fit readily into global constitutional norms, shari‘a can constitute the rule of law rather than subvert it. In the Horn of Africa, as one American observer of the region told me, shari‘a may look “illiberal and against human rights. But it’s all they’ve got.”[28] Obedience to the rule of law and to God’s will, two interlaced higher powers, makes it easier to contest unlimited political authority.

Under what conditions do people align shari‘a with values associated with the rule of law, such as challenging arbitrary authority or promoting limited government? On a practical level, Somalis have invoked shari‘a – not the rule of law – precisely when they pursue these values. As recounted in Chapter 2, in the early twentieth century, Sheikh Mohamed Abdullah Hassan used shari‘a to challenge British colonial intervention in the Horn of Africa, fundamentally disrupting the British colonial presence. Like the British administration, he also formed an army and amassed Somali followers. But to discredit the religious fervor that drove his vision of an independent society free from colonial intervention, colonial communications and media reports labeled him the “Mad Mullah.”

Later, the sheikhs described in Chapter 3 fought Siad Barre’s dictatorship by setting obedience to God’s will as the limit on their dictator’s authority. But they paid with their lives for their dissent and for understanding shari‘a differently from the regime. As Chapter 4 shows, Somalia’s “stateless” years demonstrate how shari‘a courts – like the courts that sprang up in the early history of democracies – can become the seedlings from which peace and the rule of law grow. After Siad Barre’s ouster and Somalia’s collapse in 1991, warlords began patrolling the thoroughfares. Judges in Mogadishu stabilized their neighborhoods by relying on their own understanding of shari‘a to punish criminals. They ousted warlords, allowing people to leave their homes and feel safe for the first time in years. Because Islam was one of the only credible institutions left in Somalia, it was no accident that the courts that took shape were inspired and justified by shari‘a. When these courts merged into the Islamic Courts Union and became more vocal about national politics, they succumbed to the US-backed Ethiopian military intervention of 2006–2007, underscoring how warlords and Western governments alike fear the power of fusing law and religion by invoking shari‘a.

Political elites in Somaliland and Somalia wrote Islam into their constitutions – that is, they constructed their own Islamic states – in part to stave off extremist threats. Few have done more to promote rule of-law principles in the Horn of Africa than the founders of Somaliland in the 1990s, as Chapter 5 demonstrates. To those unaware of Somali history or the varied ways in which people use shari‘a in politics, these men might at first seem to be shari‘a’s unlikeliest allies. They began as rebels amassing weapons against a government. But they were not trying to build a dictatorship so much as to topple one and replace it with constitutional democracy. From the start, Somaliland’s statebuilders saw shari’a as a source of hope from God for political change.

Somalis today continue to turn to sheikhs for help resolving disputes, particularly when they consider state courts untrustworthy or slow. In places rife with mistrust of both the state and foreign aid workers, I have met activists trying to build societies consistent with their understanding of Islamic values. As Chapter 6 shows, women activists have invoked shari‘a to persuade sheikhs, and society as a whole, to see women’s rights as Islamic rights. To these persons, Islam provides the moral accountability, trust, strategy, and faith – in short, the hope – that state leaders, aid workers, and their promises of the rule of law do not offer them.

While many political elites throughout modern Somali history have used shari‘a to build values associated with the rule of law, aid workers from foreign governments, UN agencies, and international NGOs have consistently evaded religion not because they did not know it was there – it is hard to miss – but because they did not know what to do with it. Their silence about shari‘a, alongside their active promotion of the rule of law, signals that they see these two concepts in opposition to each other, which in turn generates problems in the public perception of aid work and foreigners. Like colonial administrators long before them, contemporary aid workers and international lawyers worry about unearthing and legitimizing versions of religious law that they cannot control or that go beyond the bounds of their conscience. But their silence has facilitated the proliferation of a singular understanding of shari‘a, connected to extremism, just as their practices have also shaped the meaning of democracy or development or the rule of law itself as disconnected from extremism.

Aid groups promote non-Islamic law in part out of the fear that shari‘a could dilute or defeat the state’s authority. Unable to react properly to people’s faith in the importance of God’s will – and shari‘a as its vehicle – they have supported legal aid, legal education, and legal reform projects to secularize the state and minimize religion. These well-meaning international legal projects sometimes cultivate and institutionalize the very problems they seek to resolve. During my visit to Hargeisa in 2019, an aid worker who had just arrived from Europe asked me what English-language materials he should consult to learn about Somali law. I pointed across the room to the Somali lawyers, activists, and intellectuals working at their desks, reminding him that his colleagues and their experiences ought to be his primary sources of knowledge. Somali students I met, meanwhile, were making good-faith efforts to learn about the human rights law that such aid workers promoted, in law schools and legal aid programs set up by those aid workers. As aid workers encouraged Somali political leaders to regulate religion – for instance, by designating sheikhs as state employees, a practice instigated by British colonial officials – their actions further fragmented and pluralized the law.

The legal histories of Somaliland and Somalia reveal that in contexts where religion seems to dictate law’s power and politics, religious law may stand in a better position than international law to institute peace, stability, and the values associated with the rule of law. But aid workers’ projects promoting the rule of law – building state legal systems and their courts, prisons, law schools, and legal aid programs – have detached religion from law and purged law of religion’s influence, even though religion may actually be doing the work of promoting the rule of law. Severing religion from the rule of law disempowers and stigmatizes the faithful, sapping them of their humanness. As Jewish theologian Martin Buber wrote, humanity and faith “are not separate realms … Our faith has our humanity as its foundation and our humanity has … faith as its foundation.”[29] Most pernicious about colonial and postcolonial attempts to impose secularism in Muslim majority societies – separating Islam from law or containing and coopting shari‘a – is the way they attack humanity, corroding or even cracking the foundation of the rule of law itself.

The rule of law is as riven with indeterminacy as shari‘a is. Like any discourse or ideal introduced into politics, shari‘a and the rule of law are not without problems. However perfect as ideals, shari‘a and the rule of law make imperfect tools of legal politics. Political tools are as faulty as those who use them, and promoting the rule of law – like promoting shari‘a – has come to symbolize both what is sacred to politics and what corrupts politics. In practice, people’s social position – their gender, ethnicity, wealth, educational attainment, marital or disability status, skin color, and other characteristics – influences the extent to which they may benefit from the rule of law’s promises. For the world’s Christians and Jews, too, not just for Muslims, one’s identity characteristics, precarity, suffering, commitments, and wrestling with God form the “lifeblood” of ethics.[30]

Shari‘a remains central to the political development of the Horn of Africa. From the British and Italian colonial administrations through the Siad Barre dictatorship and beyond, political regimes in the Horn of Africa – colonial, democratic, and authoritarian – rewrote laws while struggling against the majority of Somalis who judged those laws by God’s will. Politicians sought to control religion, but the pious used religion to set boundaries on political leaders’ behavior. The debate is not about whether to have an Islamic state. That debate ended long ago. The debate is about how to have an Islamic state that strives toward the ideal of the rule of law. The politics of the Horn of Africa remain, like politics anywhere, imperfect. But many people are committed to peace, and they often draw inspiration from shari‘a. In this context, people disagree with what God wills and what they feel God’s will entitles them to do to others.

SHARI‘A POLITICS AS LEGAL POLITICS

Throughout Somali history people have invoked shari‘a to promote values associated with the rule of law. The bravery, fealty, humility, restraint, and altruism with which people have fought for the rule of law are unqualified human goods, even if others have not used their faith to promote these values. While this book has shown that the interpretation and use of shari‘a is a Somali project, it has also shown that using shari‘a – like using the rule of law – is a political project of elites who wish to create states and legal systems and to lead them. Throughout modern Somali history, the rule of law and shari‘a have been promoted side by side, largely among educated Somalis, foreigners, and observers – colonial administrators, military dictators, rebel leaders, activists, and aid workers. They all hoped that submission to religious faith or to the rule of law would save them and their societies. When seen across time, they seem to have cloaked shari‘a in as many rhetorical characteristics as the rule of law can be cloaked in – dogma, law, practice, surrender, hope, and more.

When political elites try to build law or legal institutions and use those laws and institutions to achieve their goals – in short, when they engage in legal politics – they also use and transform religion. Somalia’s and Somaliland’s political architects, from colonial administrators to contemporary politicians, all co-opted shari‘a’s power. To achieve their goals, they invoked, used, and transformed their own versions of shari‘a – and suppressed or disarmed other versions. These actions left fingerprints on state legal institutions, and on shari‘a itself, inextricably linking shari‘a with politics.

As documented in Chapter 2, administrators of British Somaliland and Italian Somalia forced Islamic and colonial laws into an uneasy codependence, bringing colonial law and Islamic theology together to enhance foreign claims to legitimacy and occupation. British colonization rewrote and reinterpreted Islam for Somalis by importing views of shari‘a from Mecca and London. Colonial officials saw how, just as religion changes the law, law can change religion. They sidelined, confined, and managed religion under the law to the point that religion could come to be seen as nearly absent from the state: the active but well-diluted ingredient of colonialism’s homeopathic solution for the ills of the uncivilized.

Unlike in Britain’s colonies in Sudan, Uganda or South and Southeast Asia, the British administration in Somaliland did not establish colleges, training schools, or other spaces to educate people about democracy in any meaningful way. They seemed to know that the less they interfered, the more they could penetrate. They built a state that separated religion from politics, and then they invoked it for their own political purposes. Aqils and sultans enforced a politically palatable version of shari‘a, becoming colonialism’s political and religious professional class. Colonial officials also waged a war of weapons and words against Somalis who used God’s will to resist the administration’s will. While British invocations of shari‘a may seem striking, they make sense given the blurred ways in which religion and law intersected for colonial officials and those subjected to their rule. Administrators of Italian Somalia acted no differently when they, too, recognized shari‘a in restricted ways and tried to limit its potential to damage the colonial enterprise.

Postcolonial elites, like colonial officials before them, also used shari‘a instrumentally. They tried to maintain legal pluralism rather than risk empowering a version of shari‘a that they could not control. Their efforts underscore how postcolonial states are not quite “post,” for the processes that colonial officials set into motion endure long past their departure. The colonial legacy of legal pluralism in the Horn of Africa was a complex brew of English common law, Italian law, different forms of xeer, and prior local versions of shari‘a, all of which colonialism transformed. As Chapter 3 discussed, the 1950s pre-independence containment of shari‘a continued after the 1960 independence, when the democratic government of the Somali Republic closed the British-instituted Islamic courts and integrated shari‘a into the judiciary. Italian and American lawyers trying to develop a Somali democracy co-opted Islamic styles of argument to dilute religious law’s impact on the state’s legal system. All the while, political leaders drafted constitutional provisions and new laws to cement the nascent state’s authority over what they hoped to make a single, unified legal system.

The authoritarian regime in Somalia differed little from its colonial and democratic predecessors in its attempts to stifle the power of religion and build a legal system in its own image, out of its own righteousness. As described in Chapter 3, Mohamed Siad Barre, Somalia’s dictator from 1969 to 1991, revamped the legal system and dressed it up in a version of shari‘a that suited nondemocratic rule. Similarly, political elites in Somaliland and Somalia since 1991 have used shari‘a to construct their own Islamic states, writing Islam into their constitutions in part to stave off threats from al-Shabaab. They all tried to contain, rather than abolish, shari‘a.

Like the generation that preceded Somalia’s 1991 collapse, the generation that followed never saw a robust rule of law. But, determined not to repeat Siad Barre’s authoritarian rule, different leaders in Somaliland and Somalia since his ouster – elders, sheikhs, government officials, and militants – have emboldened themselves with shari‘a, writing Islam into their constitutions, judgments, and laws. As Chapter 6 revealed, feminist activists, too, have invoked shari‘a – usually a symbol of their repression – as a source of their redemption. Combining piety and strategy, they have used anti-sexist interpretations of Quranic text and Hadith to advocate with sheikhs for better access to education, politics, and health, and for an end to sexual violence, because God demands these things for women. While aid groups have lauded and supported women’s organizations’ human rights goals, they also have largely shunned the discursive power and political potential of framing women’s concerns as willed by God. In so doing, these groups disregard the wisdom of women activists they support financially and purport to assist.

People invoke shari‘a in quite different ways even within al-Shabaab. After the fall of the Islamic Courts Union, people putting their faith in al-Shabaab used shari‘a to justify extreme and often opposing ends. Some in al-Shabaab benefitted financially from piracy and terror, while others spoke out against piracy and terror as crimes that did not accord with God’s will. Some in al-Shabaab instilled fear in those who did not support the organization, while others created space for people to work out their problems. In 2018, some al-Shabaab operatives were organizing suicide attacks, while others were instituting an environmental protection ban on single-use plastic bags. These choices, incompatible to outsiders, came from obedience to God’s unknowable will. Put a different way, religion both undergirds the law and facilitates dissent from it; and law lies more outside the state’s control than state leaders might hope, precisely because religion and people’s beliefs shape the law.

In my research for Shari‘a, Inshallah, as in Sudan while researching for Law’s Fragile State, I saw time and again how political elites used law both to serve and to harm others. Laws in Somaliland and Somalia, as in many places struggling with legacies of political violence, have become weapons in the arsenal of politics, to be wielded this way and that. In these places I also witnessed activists use different laws – those of human rights – to challenge orthodoxy. The invocation of an unqualified rule of law – like the release of a religious passion – can hamper or support the achievement of the ideal itself, depending on the contexts in which it is invoked and the goals of those who invoke it.

THE RULE OF LAW AS A THEOLOGY

I have distinguished between the rule of law as a kind of legal belief and theology as a kind of religious belief. But the concepts merge and are actually quite similar. This section illuminates this book’s final proposition – that is, that the rule of law and theology bear striking conceptual, genealogical, and empirical commonalities. States constitute legal systems as having their own wills, which emanate from or compete with divine will. Like a parallel god, law demands that citizens submit to its will. Activists, like the state authorities they resist, also submit to their own interpretations of God’s will to achieve their own goals.

Religion and law constitute and shape one another, state politics, and civic activism. Across time, religion drifts into and out of law so that, when viewed at any single moment, legal and religious traditions seem to share a single origin. Analyzing law and religion in a single space across time, as Shari‘a, Inshallah has done, is an historical and social scientific exercise in parsing the relations among overlapping normative systems. Each civic activist or member of the political elite revives religion as a living tradition to justify what they seek from the law. They then merge law and religion to achieve their goals of building nations or promoting rights. Religious traditions metamorphose and diffuse into society as they become sealed into stable, national “law.” As adversaries fight – physically in wars and discursively in courts or in communications with one another – over their interpretations of shari‘a and its relationship with the law, they all take God’s unknowable will, time and again, into battle.

Documenting the rule of law’s ongoing relationship with religion is important for understanding not only religious law’s place in Western political history, but also its potential in non-Western societies confronting the legacies of colonial and postcolonial politics.

The rule of law offers its own set of internally coherent beliefs, which in practice look like an alternative theology. What do these striking parallels between theology and the rule of law reveal? They imply that building the state is an attempt to build an alternative to theology. They show that law is inseparable not only from politics but also from lived religious experience. Law’s moral accountability comes from its connection to people’s trust in the state or from its connection to godliness. Shari‘a has as many meanings in practice as people have given to other objects of their work: democracy, development, and the rule of law. Each can be achieved through violent or nonviolent means, through direct political engagement, or through personal reflection and collective prayer.

Like shari‘a, the rule of law demands a radical faith that its principles will lead to peace, justice, and social and political order. Belief in the rule of law requires hope that political leaders will submit to its message. Hope, however, demands subjects willing to have faith. Law and religion constitute power not just through their doctrines, but also through people’s faith that law and religion can ease their suffering. Like theology, the rule of law demands interpretation of traditions. Such an interpretive and critical sensibility makes centuries-old principles relevant to and transformative in contemporary contexts. But these interpretive acts, when repeated across generations and places, risk separating people into believers and disbelievers, over the long term transforming a crisis of theology into a crisis in the rule of law.

The social theorist Martin Krygier labeled himself “someone with a soft spot for the rule of law.”[31] I, too, hope for the rule of law, while recognizing the colonial history in which this hope has been deployed and the postcolonial history that it has helped shape. Even in the rule of law’s absence, like a god it remains. The fact that some elites do not believe or do not practice does not mean it does not exist. On the contrary, it remains hidden in the aspirations that guide activists’ choices of which battles to fight and how hard to fight them. The fate of the rule of law, like the fate of religion in the colonial world, depends on what people do with it and the meanings they give it in politics – from grassroots activists’ attempts to construct it from the ground up to political elites’ attempts to impose it from the top down. Like religious values, the values of the rule of law may be achieved, destroyed, or reconfigured through cycles of violence and peacebuilding. Like the rule of law, shari‘a has hegemonic and non-hegemonic qualities. Like shari‘a, the rule of law can create hegemony and undo it.

The paradox of law is very much like the paradox of religion: both rely on the operative concept that people must submit to nonhuman entities that can and should limit human behavior. Put another way, law and religion are two different horizons of the human, created by the human, that also take us beyond the human. They both require a radical, inexplicable, and unknowable faith. What unites the legal, theological, and spiritual aspects of Islam (islam, iman, and ihsan, from the Hadith of the Angel Gabriel, described in Chapter 1) is the powerful notion that people must act toward others and toward the earth as if God is constantly watching and judging.

The authority of the law and the authority of God, if they exist in any society, derive from people’s faith in them, either in the stability they provide or in the transformative potential they promise. These forms of authority also inhere in the fear of consequences in this life or the next. Standing on a precarious ledge – as the Marxist historian E. P. Thompson did long ago when he labeled the rule of law an unqualified human good – if we were to say that the rule of law is not only a human good but also a gift from a higher power, then would political leaders be more likely to care for it? Would we as scholars be more willing to fight for it in our papers and lectures? Would lawyers take more care in planning activities that promote it? Or would our fervent prayers for the rule of law cause us to see ourselves as God’s chosen, ascribe excessive authority to our plans, and save ourselves while the poor wonder why we worship our idol so zealously?

My study of law in Somali political history has taught me how religious faith and experience generate legal systems – be they colonial, authoritarian, democratic, or even collapsed legal systems. I have also learned how cosmopolitanism, while not requiring faith in God, requires embracing the faithful and their struggle to submit to God’s will. It also requires deep and meaningful moral convictions or, at least, in the words of legal philosopher Ronald Dworkin, a “religious attitude to life … believing we have made something good in [the face of death].”[32] Such a theological sensibility about the rule of law involves believing, as Dworkin wrote months prior to his own death, that we are “filling the world with value and purpose.”[33] It illuminates how dictatorial, populist, and patriarchal powers belong not to humans, nor to God, nor to religion.

Insofar as we each will into our lives a higher power – a spouse or parent, the rule of law, or God – we constrain our own will by trying to understand that higher power’s will for us. Submission to God, like obedience to the rule of law, is not merely an object of study. It is a lived, practiced, and real experience. It is a form of personal devotion, and it is a political strategy. In Somaliland and Somalia, as in many other places, it makes sense that shari‘a – a legal, political, social, and ethical guide that predated a chaotic and divisive colonial and postcolonial history and that has been integrated with local customs – has functioned as people’s shared reference point. When a political leader limits their power by submitting to what they believe is a higher, nonhuman power, their recognition of that greater power involves following principles that observers associate with the rule of law. The rule of law relies upon collective acceptance that such a nonhuman power – either God or the law – is in control. For those who have struggled against colonialism, dictatorship, extremism, and foreign intervention, God’s will creates agency precisely through one’s submission to it. Acceptance of a higher power – be it God’s power, law’s power, or both – creates space for the humility leaders need to recognize that their authority is not arbitrary and that it has limits.

The fact that people building countries in such seemingly disparate places as the Horn of Africa, North America, and Western Europe all engaged with religious thought to construct their legal institutions means that, for them, law and religion were inseparable from one another and from politics. It does not mean that the rule of law and religion are compatible in some places and not others. Religion’s imprint is part of the foundation of legal institutions, and people tearing down those institutions or rebuilding them reshape both the rule of law and religion. As religion forms the root of state law, it also becomes the foundation of the rule of law, rendering law, politics, religion, and morality inseparable.

With some trepidation I write these reflections about the Horn of Africa from my desk far away in California, amidst a barrage of reports of political leaders who stoke my innermost fears of unfettered authority. The pathologies of their projects caused my family to seek refuge from Sudan decades ago, carrying with us little but faith in a better life. In the intervening years, many Somali faithful have attempted the same journey. My fortunes – surviving dictatorship, emigrating, learning, and teaching – have allowed me to investigate the politics of law and to challenge the orthodoxy that law, religion, and politics are separate, when they only seem so because we study them separately. From my privileged place I mourn the erosion of a global commitment to the revolutionary concept underlying the rule of law, the same concept underlying God, as I watch politicians use religion, public health, public order, and other pretexts to consolidate power and stretch political and legal systems past their breaking points. In times of fragility and fearfulness, faith remains, as it did long ago during my journey out of Sudan. It is faith for courage in the face of fear, faith for comfort in the face of uncertainty, and faith in the radical notion that we can dissent from those in power by surrendering to a different power. Surrendering to a different higher power – God, the rule of law, democratic constitutionalism, or whatever we choose – guides us into faith that even under the most intractable regimes or during crises, change can still come.

The complex and often misunderstood role of religion is as real in fragile or authoritarian states as it is in Western democracies where, as Richard Abel has warned, the rule of law remains under grave threat.[34]International lawyers, aid workers, and other modern defenders of the rule of law must consider their faith not only in legal tools but also in religious ones.

Ending my interview with him in Hargeisa, an imam told me he felt free because “the white man left Africa.” When I asked for clarification, he paused, and continued: “When the white man also takes his thoughts, his culture, his legal system, his economic domination, and his political influence – on that day, I will finally be independent.”[35] Somali political history reveals that true independence demands faith, that faith in shari‘a thrives in the construction of legal and social order, that faith in shari‘a advances rule of law principles, and that faith in shari‘a provides people hope that, inshallah, our actions serve a will higher than our own.


NOTES

[1] Interview 85 with Ibrahim, NGO program adviser in Nairobi, Kenya (August 2013).

[2] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).

[3] Interview 59 with Kalim, former NGO executive director in Hargeisa, Somaliland (July 2013).

[4] Ashraf Ghani and Clare Lockhart, Fixing Failed States: A Framework for Rebuilding a Fractured World (Oxford: Oxford University Press, 2008), 125.

[5] Rafael Domingo, God and the Secular Legal System (Cambridge: Cambridge University Press, 2017), 3.

[6] Mirjan Damaška, Evaluation of Evidence: Pre-Modern and Modern Approaches (Cambridge: Cambridge University Press, 2019).

[7] Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Revolution (London: Profile Books, 2012), 241.

[8] Marina Kurkchiyan and Agnieszka Kubal, “Administerial Justice,” in A Sociology of Justice in Russia, eds. Marina Kurkchiyan and Agnieszka Kubal (Cambridge: Cambridge University Press, 2018), 276.

[9] See, for example, Émile Durkheim, The Elementary Forms of the Religious Life, trans. Joseph Ward Swain (Mineola, NY: Dover Publications, [1915] 2008); Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (London: John Murray, 1861).

[10] Domingo (2017), 10.

[11] Thomas Blom Hansen, The Saffron Wave: Democracy and Hindu Nationalism in Modern India (Princeton, NJ: Princeton University Press, 1999); Angana P. Chatterji, Thomas Blom Hansen, and Christophe Jaffrelot, eds. Majoritarian State: How Hindu Nationalism is Changing India (London: Hurst, 2019).

[12] Maryam S. Khan, “Ethnic Federalism in Pakistan: Federal Design, Construction of EthnoLinguistic Identity & Group Conflict,” 30 Harvard Journal of Racial and Ethnic Justice (2014): 77–129.

[13] Interpretations of Christian ethics emanate from “evangelical, Pentecostal, new Christian conservative, liberal, Black, liberationist, creationist, feministic, [and] syncretic” views, among others. Cecelia M. Lynch, Wrestling with God: Ethical Precarity in Christianity and International Relations (Cambridge: Cambridge University Press, 2020), 240–241. On Jewish commitments to social justice, see David N. Myers, ed., The Eternal Dissident: Rabbi Leonard I. Beerman and the Radical Imperative to Think and Act (Oakland, CA: University of California Press, 2018).

[14] Jeffrey A. Redding, A Secular Need: Islamic Law and State Governance in Contemporary India (Seattle, WA: University of Washington Press, 2020), 4.

[15] Ebenezer Odabare, Pentecostal Republic: Religion and the Struggle for State Power in Nigeria (London: Zed Books, 2018); Sarah Eltantawi, Shari‘ah on Trial: Northern Nigeria’s Islamic

Revolution (Oakland, CA: University of California Press, 2017); see also David D. Laitin, “The Sharia Debate and the Origin of Nigeria’s Second Republic,” 20(3) Journal of Modern African Studies (1982): 411–430.

[16] Lynch (2020), 234.

[17] David R. Smock, ed. Religious Contributions to Peacemaking: When Religion Brings Peace, Not War, Peaceworks No. 55 (Washington, DC: United States Institute of Peace, 2006); Robert A. Dowd, Christianity, Islam, and Liberal Democracy: Lessons from Sub-Saharan Africa (Oxford: Oxford University Press, 2015).

[18] Biko Mandela Gray, “Religion in/and Black Lives Matter: Celebrating the Impossible,” 13(1) Religion Compass (2019): 1–9; Vincent Lloyd, ed., Religion, Secularism, and Black Lives Matter, The Immanent Frame (New York: Social Sciences Research Council), 2016, available: https:// bit.ly/39YfZu7.

[19] Mark Fathi Massoud and Kathleen M. Moore, “Shari‘a Consciousness: Law and Lived Religion among California Muslims,” 45(3) Law & Social Inquiry (2020): 787–817.

[20] Leonard Francis Taylor, Catholic Cosmopolitanism and Human Rights (Cambridge: Cambridge University Press, 2020).

[21] Paul Scham, “‘A Nation that Dwells Alone’: Israeli Religious Nationalism in the 21st Century,” 23(3) Israel Studies (2018): 207–215, 212; Gideon D. Sylvester, “Social Justice Lies at the Heart of the Jewish People,” Haaretz, June 30, 2012, available: https://bit.ly/33UOVYX; Nir Kedar, “The Rule of Law in Israel,” 23(3) Israel Studies (2018): 164–171.

[22] Fukuyama (2012), 241.

[23] Sudan Professionals Association, “Forces of Freedom and Change (FCC) Speech, on Signing the Agreement,” August 17, 2019, available: https://bit.ly/3qL7MPO (accessed January 1, 2021).

[24] Sonia Ahsan, “When Muslims Become Feminists: Khana-yi Aman, Islam, and Pashtunwali,” in Afghanistan’s Islam: From Conversion to the Taliban, ed. Nile Green (Oakland, CA: University of California Press, 2017), 225–241, p. 226.

[25] Nile Green, “Introduction,” in Afghanistan’s Islam: From Conversion to the Taliban, ed. Nile Green (Oakland, CA: University of California Press, 2017), 1–40, p. 26.

[26] Terence C. Halliday, “The Conscience of Society? The Legal Complex, Religion, and the Fates of Political Liberalism,” in The Paradox of Professionalism: Lawyers and the Possibility of Justice, ed. Scott L. Cummings (Cambridge: Cambridge University Press, 2011), 50–67, p. 51.

[27] Interview 60 with Tariq, legal aid attorney in Hargeisa, Somaliland (July 2013).

[28] Interview 16 with Todd, expatriate consultant and professor, in Hargeisa, Somaliland (June 2013).

[29] Paul Mendes-Flohr, Martin Buber: A Life of Faith and Dissent (New Haven, CT: Yale University Press, 2019), 290–291, citing Martin Buber, A Believing Humanism: My Testament, 1902–1965, trans. Maurice Friedman (New York: Simon & Schuster, 1967), 117. On the ways that US law masks humanity, see John T. Noonan, Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (Oakland, CA: University of California Press, [1976] 2002).

[30] Lynch (2020), 234.

[31] Martin Krygier, “The Rule of Law between England and Sudan: Hay, Thompson, and Massoud,” 41(2) Law & Social Inquiry (2016): 480–488.

[32] Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013), 155, 158.

[33] Ibid., 1.

[34] Richard Abel, Law’s Wars: The Fate of the Rule of Law in the US “War on Terror” (Cambridge: Cambridge University Press, 2018).

[35] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).

[36] On conducting empirical research in conflict and post-conflict settings, see Mark Fathi Massoud, “Field Research on Law in Conflict Zones and Authoritarian States,” 12 Annual Review of Law and Social Science (2016c): 85–106; Sarah Nouwen “‘As You Set Out for Ithaka’: Practical, Epistemological, Ethical, and Existential Questions about Socio-Legal Empirical Research in Conflict,” 27(1) Leiden Journal of International Law (2014): 227–260.

Appendix A – Methodological Detail

This appendix supplements the methodological description found in the Introduction. Here, I provide further detail on the archival, ethnographic, interview, and data-analysis components of this study, particularly for scholars and students considering projects that involve comparative and historical research on law and religion in Somalia, Somaliland, or elsewhere.[36]

ARCHIVAL RESEARCH

Archival records on the colonial period, particularly materials from the British Somaliland Protectorate, are scattered across multiple cities in England and East Africa. I conducted archival research in the United Kingdom (Cambridge, Durham, London, and Oxford); Somaliland (Hargeisa), and Kenya (Nairobi). Together these six cities hold the largest collection of English language documents on British Somaliland, its transitions to independence, and post-independence periods. The list summarizing the archives and libraries visited for this book follows in Appendix B.

United Kingdom

In the UK, I investigated how and why British colonial officials formalized shari‘a by creating qadi courts and formalized Somali customs (xeer) by bringing local authorities into the British administration as dispute resolvers. I accessed original documents from the British Somaliland Protectorate (1884–1960), including memoirs of colonial officials and correspondences with the Foreign Office and their families, from the British Library, SOAS University of London, and the Royal Anthropological Institute in London; the Cambridge University Centre for African Studies; and the Oxford University African and Commonwealth Library, formerly at Rhodes House.

Somaliland and Kenya

Archival records and libraries I consulted in Hargeisa include the libraries of the University of Hargeisa and the Academy for Peace and Development, the resource center of the Institute of Peace and Conflict Studies, and the records offices of the Ministry of Planning, Ministry of Justice, and Ministry of Islamic Affairs. In Nairobi, I consulted archival materials kept at the Rift Valley Institute and the British Institute for Eastern Africa.

In addition to scouring these records, I accessed government documents from Somaliland to provide evidence for the argument that shari‘a plays a critical role in state development. This includes compiling the registered lawyers, courts, clan chiefs, and non-state Islamic tribunals (macduum) from government ministries, including the Somaliland Ministry of Interior (which licenses aqils, or clan elders); the Ministry of Justice (which records the number and location of state courts and judges); and international and local aid groups active in the Horn of Africa, which have conducted legal assessments for their proposals to international donors. Organizations include the United Nations Development Programme (UNDP) Somalia, the Observatory for Conflict and Violence Prevention, and the University of Hargeisa Faculty of Law.

ETHNOGRAPHIC OBSERVATIONS

Understanding the role of Islamic legal politics in Somaliland and Somalia necessitates observations of law in action. In Hargeisa, I observed three key legal arenas: state courts; legal aid centers; and workshops and conferences designed and implemented by local or international aid groups. I was unable to sit in on non-state shari‘a tribunals (macduum), which feature in the later chapters of this study, and customary tribunals involving clan elders (sultans and aqils), though sheikhs, sultans, aqils, and others whom I met and interviewed shared with me many stories from these venues.

State courts. In 2013 and 2014, with the assistance of a translator, I observed multiple proceedings of the district (shari‘a) and regional (non-shari‘a) courts of Hargeisa, to understand how people use religious discourse and rights discourse in state courts and the relationship between state law and religious legal principles in these places.

Legal aid centers. Somaliland’s first law school opened in 2002 at the University of Hargeisa. A cohort of law graduates each year serves required one-year internships in one of the many legal aid centers throughout the country, including the University of Hargeisa Legal Aid Clinics (in Hargeisa, Berbera, and Burao), the Somaliland Lawyers Association Legal Aid Clinics, and the Somaliland Women Lawyers Association Legal Aid Clinics (in Hargeisa, Borama, and Burao). In the legal aid clinics I shadowed local lawyers and paralegals as they documented disputes and represented clients who otherwise would be unable to afford a private attorney.

Human rights workshops and conferences. Aid groups, primarily UN agencies or NGOs from Europe and North America, promote legal progress by holding educational workshops for government officials, religious leaders, and others to discuss law and development in the Horn of Africa. Many Somalis I met actively debated the relationship between principles of international law and human rights, largely drafted and taught by outsiders, and the customary norms and religious principles to which they adhere. I observed these activities and spoke with participants during the breaks and after the workshops.

INTERVIEWS

During the first two extended visits to the Horn of Africa for this project, in summer 2013 and summer 2014, I conducted more than 130 interviews in Somaliland, Kenya, and Ethiopia. In 2015 and 2016 I conducted three additional telephone interviews with foreign lawyers who had lived or worked in Mogadishu and, in 2019, I conducted six additional in-person interviews in Hargeisa, totaling 142 interviews between 2013 and 2019.

Most interviews were in a combination of Arabic and English. A research assistant was present as a translator for interview 114, in which the respondent spoke Somali. My interview guide was initially wide-ranging across legal topics, which allowed me to focus on more specific issues during my second period of fieldwork one year later. I developed a clear set of interview questions based on defined themes I wanted to discuss, relating to interviewees’ perceptions of shari‘a, customary law, and state courts. The semi-structured format I adopted allowed for flexibility in response to each interviewee’s statements. This format also allowed me, in the course of a single interview, to assess how people’s behaviors and perspectives have changed across their careers – for instance, as university lecturers become judges, activists join aid agencies, and administrators become government officials.

To protect confidentiality, I translated Arabic into English on my own. I kept data in encrypted, password-protected files. The interview list follows in Appendix C.

ANALYSIS AND CODING

I coded interview transcripts using a qualitative analysis software program, Text Analysis Markup Software (TAMS) Analyzer. Coding software like TAMS Analyzer allows scholars to find common themes emerging across the data and then to tag and categorize text according to those common themes or keywords. I developed, checked, and used more than 230 codes and subcodes. For instance, the code “law>pluralism>colonial” allowed me to evaluate how different interviewees spoke about the multiple legal orders that existed in the colonial environment. Another code, “NGO>strategies>legal” allowed me to analyze how NGOs adopted legal strategies to promote social change. I also developed “metacodes” to allow me to search transcripts by demographic data.

Analysis involved searching common themes across interview transcripts, field notes, and historical materials, to understand how patterns emerged, and then to think about those patterns in relation to theories I have considered in the law and society literature addressing the interplay between religion and the rule of law.

Appendix B – Archives And Libraries Visited

United Kingdom (Cambridge, Durham, London, and Oxford)

African and Commonwealth Library (formerly Rhodes House), Oxford University

Bodleian Library, Oxford University

British Library, London

Centre for African Studies, Cambridge University

Foreign Office Confidential Prints, Oxford University Faculty of Law

Royal Anthropological Institute, London

SOAS University of London

Sudan Archive, Palace Green Library, Durham University

Somaliland (Hargeisa)

Institute for Peace and Conflict Studies, University of Hargeisa

Somaliland Ministry of Interior

Somaliland Ministry of Justice

Observatory for Conflict and Violence Prevention

United Nations Development Programme (UNDP) Somalia

Kenya (Nairobi)

British Institute for East Africa

Appendix C – Interview List

Note: The author conducted all interviews, except numbers 72–76 in this list, which were conducted by a research assistant under the author’s supervision. All interviews by the author were in a combination of English and Arabic, except number 114, which was in Somali with a research assistant present as a translator. Eighteen of these 142 interviews are repeat interviews, listed accordingly. Unless otherwise indicated, each interview in this list describes the interviewee’s workplace at the time of the interview and interview location, if different. All names are pseudonyms.

  1. Interview with Hanson, professor in London, England (June 2013).
  2. Interview with Noori, independent researcher in London, England (June 2013).
  3. Interview with Sam, professor in London, England (June 2013).
  4. Interview with Adnan, law graduate from Somaliland in London, England (June 2013).
  5. Interview with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).
  6. Interview with Rashida, lawyer and government consultant in Hargeisa, Somaliland (conducted by telephone from London, England) (June 2013).
  7. Interview with Faris, professor and government official in Hargeisa, Somaliland (June 2013).
  8. Interview with Abdullahi, independent researcher in Hargeisa, Somaliland (June 2013).
  9. Interview with Naqeeb, professor at the University of Mogadishu, Somalia (conducted in person in Hargeisa, Somaliland) (June 2013).
  10. Interview with Tahir, NGO executive director in Hargeisa, Somaliland (June 2013).
  11. Follow-up interview with Faris, professor and government official in Hargeisa, Somaliland (June 2013).
  12. Interview with Daniel, expatriate lawyer and NGO program manager in Hargeisa, Somaliland (June 2013).
  13. Interview with Farooq, NGO program manager in Hargeisa, Somaliland (June 2013).
  14. Interview with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
  15. Interview with Evelyn, United Nations official in Garowe, Puntland (conducted by telephone from Hargeisa, Somaliland) (June 2013).
  16. Interview with Todd, expatriate consultant and professor, in Hargeisa, Somaliland (June 2013).
  17. Interview with Amburo, former senior government minister and United Nations official in Hargeisa, Somaliland (June 2013).
  18. Interview with Bashir, university administrator in Hargeisa, Somaliland (June 2013).
  19. Interview with Jeff, aid worker and consultant in Hargeisa, Somaliland (June 2013).
  20. Interview with Akifah, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
  21. Interview with Ra’ed, writer and consultant in Hargeisa, Somaliland (June 2013).
  22. Interview with Shahab, expatriate consultant in Hargeisa, Somaliland (June 2013).
  23. Interview with Rafiq, expatriate consultant in Hargeisa, Somaliland (June 2013).
  24. Interview with Faraax, NGO program manager and government agency staff member in Hargeisa, Somaliland (June 2013).
  25. Interview with Raouf, senior United Nations official in Hargeisa, Somaliland (June 2013).
  26. Interview with Amina, independent researcher in Hargeisa, Somaliland (June 2013).
  27. Interview with Leslie, expatriate aid worker in Hargeisa, Somaliland (June 2013).
  28. Interview with Nahda, NGO project manager in Hargeisa, Somaliland (June 2013).
  29. Interview with Daahir, NGO project manager in Hargeisa, Somaliland (June 2013).
  30. Interview with Zack, expatriate lawyer in Hargeisa, Somaliland (June 2013).
  31. Interview with Fadl, lawyer in Hargeisa, Somaliland (June 2013).
  32. Interview with Axmed, lawyer and university lecturer inHargeisa, Somaliland (June 2013).
  33. Interview with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
  34. Interview with Cabdi, former political prisoner and retired NGO executive director in Hargeisa, Somaliland (June 2013).
  35. Interview with Cabdulmajid, senior government official in Hargeisa, Somaliland (June 2013).
  36. Interview with Yasir, senior government official in Hargeisa, Somaliland (June 2013).
  37. Interview with Sultan Mansoor, sultan in Hargeisa, Somaliland (June 2013).
  38. Interview with Fatima, lawyer and aid worker in Hargeisa, Somaliland (July 2013).
  39. Interview with Samira, lawyer and paralegal in Hargeisa, Somaliland (July 2013).
  40. Interview with Gasim, NGO program manager in Hargeisa, Somaliland (July 2013).
  41. Interview with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
  42. Interview with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
  43. Interview with Khadija, legal aid attorney in Hargeisa, Somaliland (July 2013).
  44. Interview with Yusuf, corporate executive in Hargeisa, Somaliland (July 2013).
  45. Interview with Aqil Zaki Yasim, aqil and senior government official in Hargeisa, Somaliland (July 2013).
  46. Interview with Xabiib, senior government official in Hargeisa, Somaliland (July 2013).
  47. Interview with Jamila, NGO executive director in Hargeisa, Somaliland (July 2013).
  48. Interview with Asma, senior legal aid attorney in Hargeisa, Somaliland (July 2013).
  49. Interview with Babiker, university administrator and lecturer in Hargeisa, Somaliland (July 2013).
  50. Interview with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (July 2013).
  51. Interview with Jalal, former judge and law professor in Mogadishu, Somalia (conducted in Hargeisa, Somaliland) (July 2013).
  52. Interview with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
  53. Interview with Talal, paralegal in Hargeisa, Somaliland (July 2013).
  54. Follow-up interview with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
  55. Interview with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (July 2013).
  56. Interview with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013).
  57. Interview with Aisha, legal aid attorney in Borama, Somaliland (conducted by telephone from Hargeisa, Somaliland) (July 2013).
  58. Interview with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
  59. Interview with Kalim, former NGO executive director inHargeisa, Somaliland (July 2013).
  60. Interview with Tariq, legal aid attorney in Hargeisa, Somaliland (July 2013).
  61. Interview with Mire, legal aid attorney in Hargeisa, Somaliland (July 2013).
  62. Interview with Bilan, NGO executive director in Hargeisa, Somaliland (July 2013).
  63. Interview with Da’ood, NGO executive director in Hargeisa, Somaliland (July 2013).
  64. Follow-up interview with Khalid, lawyer and university lecturerin Hargeisa, Somaliland (July 2013).
  65. Interview with Jen, expatriate aid worker in Nairobi, Kenya (conducted by telephone from Hargeisa, Somaliland) (July 2013).
  66. Interview with Aaliyah, independent researcher and former government attorney in Hargeisa, Somaliland (July 2013).
  67. Interview with Omar, senior government official in Hargeisa, Somaliland (July 2013).
  68. Follow-up interview with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
  69. Follow-up interview with Axmed, lawyer and university lecturerin Hargeisa, Somaliland (June 2013).
  70. Follow-up interview with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013).
  71. Interview with Souad, women’s health activist in Hargeisa, Somaliland (July 2013).
  72. Interview with Taban, legal aid attorney in Hargeisa, Somaliland (July 2013).
  73. Interview with Filsan, legal aid attorney in Hargeisa, Somaliland (July 2013).
  74. Interview with Ibtisam, legal aid attorney in Hargeisa, Somaliland (July 2013).
  75. Interview with Kamal, United Nations staff member in Hargeisa, Somaliland (July 2013).
  76. Interview with Iman, government attorney in Hargeisa, Somaliland (July 2013).
  77. Interview with Khadra, United Nations official in Nairobi, Kenya (July 2013).
  78. Interview with Majda, lawyer and human rights activist in Mogadishu and Hargeisa (conducted in Nairobi, Kenya) (July 2013).
  79. Interview with       Karim,   aid worker in         Nairobi,                Kenya (August 2013).
  80. Interview with Gul, aid worker in Nairobi, Kenya (August 2013).
  81. Interview with Warsame, lawyer and adviser to the Transitional Federal Government of Somalia (conducted in Nairobi, Kenya) (August 2013).
  82. Interview with Mille, expatriate aid worker in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).
  83. Interview with Agnes, NGO executive director in Nairobi, Kenya (August 2013).
  84. Interview with Edith, human rights researcher in Nairobi, Kenya (August 2013).
  85. Interview with Ibrahim, NGO program adviser in Nairobi, Kenya (August 2013).
  86. Interview with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya)(August 2013).
  87. Interview with Muuse, retired senior government minister in Mogadishu, Somalia (conducted in Addis Ababa, Ethiopia) (August 2013).
  88. Interview with Sheikh Tawfiiq, sheikh and senior government official in Hargeisa, Somaliland (June 2014).
  89. Interview with Sheikh Abdirahman, sheikh and senior government official in Hargeisa, Somaliland (June 2014).
  90. Interview with Suleiman, lawyer and paralegal in Hargeisa, Somaliland (June 2014).
  91. Interview with Bassam, law student in Hargeisa, Somaliland(June 2014).
  92. Interview with Tayyib, lawyer and paralegal in Hargeisa, Somaliland (June 2014).
  93. Follow-up interview with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (June 2014).
  94. Follow-up interview with Jeff, aid worker and consultant in Hargeisa, Somaliland (June 2014).
  95. Interview with Adam, independent researcher and consultant in Hargeisa, Somaliland (June 2014).
  96. Follow-up interview with Adam, independent researcher and consultant in Hargeisa, Somaliland (June 2014).
  97. Interview with Sadiq, NGO executive director in Hargeisa, Somaliland (June 2014).
  98. Follow-up interview with Tahir, NGO executive director in Hargeisa, Somaliland (June 2014).
  99. Interview with Shermarke, former senior university administrator and United Nations official in Hargeisa, Somaliland (June 2014).
  100. Interview with Hassan, legal aid attorney and former militia leader and police official in Hargeisa, Somaliland (June 2014).
  101. Interview with Idriss, university lecturer and independent consultant in Hargeisa, Somaliland (June 2014).
  102. Interview with Cabdelcaziz, government agency director in Hargeisa, Somaliland (June 2014).
  103. Interview with Garaad, political activist in Hargeisa, Somaliland (June 2014).
  104. Interview with Yasmeen, legal aid attorney in Hargeisa, Somaliland (June 2014).
  105. Follow-up interview with Faisal, senior government official in Hargeisa, Somaliland (June 2014).
  106. Interview with Nabil, senior government official in Hargeisa, Somaliland (June 2014).
  107. Interview with Roble Ali, government agency director in Hargeisa, Somaliland (June 2014).
  108. Follow-up interview with Rashida, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
  109. Interview with Qasim, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
  110. Interview with Kahlil, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
  111. Interview with Huda, NGO program manager in Hargeisa, Somaliland (June 2014).
  112. Follow-up interview with Qasim, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
  113. Interview with Majed, legal aid attorney in Hargeisa, Somaliland (June 2014).
  114. Interview with Aqil Mustafa, senior government official and former aqil of British colonial administration (June 2014).
  115. Interview with Idil, children’s rights activist in Hargeisa, Somaliland (June 2014).
  116. Interview with Nisreen, NGO executive director in Hargeisa, Somaliland (June 2014).
  117. Interview with Badri, youth activist and artist in Hargeisa, Somaliland (June 2014).
  118. Interview with Ismaciil, NGO executive director in Hargeisa, Somaliland (June 2014).
  119. Interview with Abubakr, NGO finance manager in Hargeisa, Somaliland (June 2014).
  120. Interview with Cadil, senior government official in Hargeisa, Somaliland (June 2014).
  121. Interview with Guleed, senior government official in Hargeisa, Somaliland (June 2014).
  122. Interview with Xidig, government minister in Hargeisa, Somaliland (June 2014).
  123. Follow-up interview with Shermarke, former senior university administrator and United Nations official in Hargeisa, Somaliland (June 2014).
  124. Interview with Najib, former senior government minister in Hargeisa, Somaliland (June 2014).
  125. Interview with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (June 2014).
  126. Interview with Dhahir, senior university administrator in Borama, Somaliland (conducted in Hargeisa, Somaliland) (June 2014).
  127. Interview with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).
  128. Interview with Omera, NGO project manager in Hargeisa, Somaliland (June 2014).
  129. Interview with Xalwo, women’s rights activist in Hargeisa, Somaliland (June 2014).
  130. Interview with Ladan, women’s rights activist in Hargeisa, Somaliland (June 2014).
  131. Interview with Shamsi, women’s rights activist in Hargeisa, Somaliland (June 2014).
  132. Interview with Cabaas, senior government attorney and minister in Hargeisa, Somaliland (June 2014).
  133. Interview with Stephanie, researcher and author in London, England (July 2014).
  134. Interview with Hatim, United Nations official and adviser to the Somali constitution drafting process in Mogadishu, Somalia (reached via telephone from Princeton, New Jersey) (November 2015).
  135. Interview with Matilda, international lawyer and adviser to the Somali constitution drafting process in Mogadishu, Somalia (reached via telephone from Princeton, New Jersey) (December 2015).
  136. Interview with Philip, retired international lawyer who worked in the 1960s-70s in Mogadishu, Somalia (reached via telephone from San Francisco, California) (September 2016).
  137. Follow-up interview with Idriss, university lecturer and independent consultant in Hargeisa, Somaliland (March 2019).
  138. Interview with Asha, university lecturer and independent consultant in Hargeisa, Somaliland (March 2019).
  139. Follow-up interview with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (March 2019).
  140. Follow-up interview with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (March 2019).
  141. Interview with Bourhan, NGO project coordinator in Hargeisa, Somaliland (March 2019).
  142. Follow-up interview with Kabir, senior judicial official and former university administrator in Hargeisa, Somaliland (March 2019).

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Refah Partisi and Others v. Turkey, Application No. 41340/98, judgment of February 13, 2003, European Court of Human Rights.

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Agrama, Hussein Ali. 2012. Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Egypt. Chicago, IL: University of Chicago Press.

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