In postcolonial Muslim-majority contexts, particularly in areas struggling with political violence, achieving the ideal of the rule of law is straightforward neither in theory nor in practice.
Plural and overlapping legal orders – derived from Islamic principles, from the traditions of indigenous communities, and from the laws and institutions imported by colonial administrators or foreign aid workers and managed by postcolonial state leaders – shape how citizens come to understand different values associated with legal order. In these states, common ideals and shared visions of what law is and how it should work are scarce.
Litigants may shop around among different legal systems (each one derived from an amalgam of traditions) for a desired outcome of their disputes, as they are pulled in one direction or another by family members, religious and community leaders, and lawyers.
Author
Mark Fathi Massoud
Type
Chapter
Information
Shari‘a, Inshallah: Finding God in Somali Legal Politics
, pp. 31 – 62
DOI: https://doi.org/10.1017/9781108965989.003
Publisher: Cambridge University Press
Print publication year: 2021
BOOK CHAPTER
CHAPTER ONE – Embracing Shari’a And The Rule Of Law
From Shari‘a, Inshallah: Finding God in Somali Legal Politics
By Mark Fathi Massoud
Published online by Cambridge University Press: 13 May 2021
Mark 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
THE SOMALI EXPERIENCE OF SHARI‘A
The Indeterminate Nature of Shari‘a
A Socio-Legal Approach to Shari‘a
LAW AND RELIGION IN SOMALI HISTORY
INTRODUCTION
In postcolonial Muslim-majority contexts, particularly in areas struggling with political violence, achieving the ideal of the rule of law is straightforward neither in theory nor in practice. Plural and overlapping legal orders – derived from the principles of Islam, from the traditions of indigenous communities, and from the laws and institutions imported by colonial administrators or foreign aid workers and managed by postcolonial state leaders – shape how citizens come to understand different values associated with legal order. In these states, common ideals and shared visions of what law is and how it should work are scarce. Litigants may shop around among different legal systems (each one derived from an amalgam of traditions) for a desired outcome of their disputes, as they are pulled in one direction or another by family members, religious and community leaders, and lawyers.
The complicated ways these different legal orders work in parallel are exemplified in the following case I observed at the district courthouse in Hargeisa, where judges are expected to use shari‘a principles in rendering their decisions. A woman brought suit for damages against her husband, claiming that he and his other two wives attempted to murder her. Historically these kinds of family problems, even those involving criminal allegations like murder, are settled outside of state courts. The adjudicators are either private sheikhs who use shari‘a or community leaders, called sultans or aqils, who use xeer. In Somali, xeer literally means law. But Somalis and foreigners use the word synonymously with xeer dhaqan, or customary law. It is a broad Somali concept for legal norms generally derived from a combination of Islamic principles and local practices. Although xeer is unique to each community, it is likely the aggrieved wife here would at best receive a nominal award – hal kado, in Somali – such as an apology from her husband for her attempted murder. With such a poor result looming for the battered wife, she was willing to take her chances in a state court, especially with the assistance of a United Nations-funded legal aid attorney.
The judge began the hearing by inviting the plaintiff’s lawyer to state her case and bring forward witnesses. Three witnesses were sworn in, each on Allah’s name. One by one, these three women each told a similar story. Late one night, they saw a man and two women standing above the plaintiff, who was lying on the road and screaming. Because it had been dark, none of the witnesses was able to identify the man or the two women with him. The judge then questioned the plaintiff directly, asking if she knew additional witnesses. The plaintiff said she did know some other people who witnessed her attempted murder. The judge then asked the plaintiff to bring these additional witnesses to the next hearing and quickly adjourned. As we were filing out of the courtroom, I asked the plaintiff’s attorney why the judge had demanded additional witnesses. Were the three women not enough? (I knew that under some interpretations of Islamic law, witnesses are treated differently by gender.) The plaintiff’s lawyer told me that such an interpretation did not apply because the judge had merely wanted stronger evidence – someone who had more clearly seen the faces of the people standing above the victim. “Here,” the lawyer continued, “a witness is a witness,” regardless of gender.
Law is a messy business, especially in societies living with colonial legal legacies and postcolonial violence. Legal systems are plural, layered, incomplete, and open to interpretation by state judges and others who claim the authority – from religion, custom, foreign or international legal interventions, or some combination thereof – to adjudicate.[1] But legal order still exists and thrives, albeit in ways that are sometimes parallel and sometimes contradictory to the goals of the rule of law.[2] Many people engage with, invoke, and are empowered by law, though the outcomes of their efforts may be far from ideal, for both claimants and observers. Here, a judge working for Somaliland’s autonomous government and sitting in a court first conceived by British colonial officials applied his own interpretation of shari‘a – an interpretation that may have contradicted the interpretations of others. The legal aid attorney, whose salary was funded by UN rule-of-law projects, lamented that even if she were to bring forward more witnesses, the case might eventually be resolved by the plaintiff’s elders. They would rule according to their customs, ostensibly built on decisions from previous marital disputes in their communities and said to be consistent with Islamic principles. Most of these different legal orders – derived from some combination among state laws, local customs, and religious norms – claim to rest upon or be consistent with shari‘a. But in practice, shari‘a means many things to many people, and it is difficult to isolate the law’s origins in Islam as if it had some precise, determinable genetic code.
A state of confusion surrounding law in Muslim-majority countries dealing with legacies of legal pluralism and political violence results in the perception among foreign policymakers either that there is no law at all or that whatever law does exist is founded upon the arbitrary will of a judge, sheikh, elder, or other person who claims authority.[3] Somali government officials and the aid workers assisting them, in contrast, see the problem not as a lack of law, but as a lack of harmonization among the different systems – religious law, state law, customary law, international law, and human rights principles.[4]
The international aid community’s efforts to build respect for the rule of law generally involve working with Somalis to smooth out the distinctions among different legal orders based on indigenous, religious, and state authority. Legal development, as aid workers in the Horn of Africa told me, aims to induce Somali people to turn to the state to resolve their private disputes. In order to divert religious authorities’ dispute resolution work into the government, aid workers have encouraged successive Somali governments to subsume the religious leaders’ efforts under the state legal system. The government would then draw its strength from below, by bringing religious principles and personnel into the state, and from above, by proclaiming the state’s adherence to international human rights principles. Such a government would presumably have enough authority to oversee all dispute resolution efforts, including those of religious people, and to ensure that all decisions would fall in line with international human rights. Aid workers hope that keeping state courts and civil servants busy helping people will legitimize the state’s authority in a legally competitive space where, in the eyes of the people, the state has historically seemed at best irrelevant or, at worst, unreliable and untrustworthy.
These efforts to control indigenous and religious authority are also designed to minimize the potential for shari‘a’s hegemony. Aid work commonly treats religion as “natural, irrational, incontestable, and imposed … Simply put, religion is the ‘other’ of international law.”[5]In Somaliland and Somalia, aid workers devote energy to development initiatives that draw directly upon international law. In the short term, these initiatives render people’s shari‘a-based systems of governance invisible. In the long term, such international law-based programs undermine public order and “undercut … existing informal security systems.”[6] Aid workers’ efforts to shore up the state and fend off shari‘a instead erode human security and the state itself. Put more broadly, international legal development activities in Muslim-majority states are designed to promote the rule of law by unifying pre-existing plural legal orders under a state, rather than under a religion – despite the fact that many citizens see religion as a stronger legal foundation for peace and stability because Islam constitutes the basis of their personal and communal activities.
Shari‘a is, however, not a rigid legal doctrine to follow and implement. Rather, shari‘a shapes and is shaped by centuries of textual interpretation, local and regional politics, state-building practices, and colonial and postcolonial interventions. As one Somali told me, “No longer does shari‘a belong [only] to the sheikh.”[7] Shari‘a is, instead, the purview of everyone – claimants, judges, colonial administrators, postcolonial government officials, aid workers, and activists – to invoke, enact, or even dismantle as they seek solutions to their problems. Scholars discuss how “rights” serve as a “master frame” that people use and stretch to pursue their varying aims. So, too, do different actors in Somaliland and Somalia manipulate shari‘a as a master frame for their political values and goals.[8]
Governments and observers often misread shari‘a as the antithesis of modern state law or the unspeakable legal imprint of dictators, pirates, and warlords.[9] These characterizations cause international policy to miss the ways shari‘a instead thrives among those who promote respect for peace, community, and the rule of law. Something remarkable has happened to shari‘a. While shari‘a technically constitutes a path to God’s will, derived from the Qur’an and the teachings and actions of the Prophet Muhammad, God’s will is also open to human interpretation, uncertainty, and hope. Shari‘a has become a malleable basis for political, legal, and rhetorical claims in many areas of social life – a challenge to colonialism and a justification for it, a challenge to authoritarianism and a justification for it, and a challenge to Western views of human rights and a justification for those views. Shari‘a’s flexibility allows those who seek peace or stability to use it along the path to their goals.
Some uses of shari‘a are more rhetorical, pragmatic, and strategic, while others are more ideologically committed. Nevertheless, all of the different elites in modern Somali history claim that their interpretation of shari‘a is the true and correct one. Rather than seeking to find a “right” shari‘a, this book exposes its different versions in practice, pointing out the ways that the debates over shari‘a help legal politics thrive, sometimes cultivating and sometimes challenging not only the meaning of shari‘a but also the different pathways – violent, nonviolent, or both – toward the rule-of-law ideal.
In short, inasmuch as shari‘a has led many Somalis to stand up against injustice, and has led many others to defend that injustice, Islam has become a tool of legal politics.[10] Political elites across Somali history have tried to build peace with it, constitutionalize it, democratize it, co-opt it, and silence it. Amidst radical legal pluralism and shattered statehood, shari‘a remains a lasting and resilient force for political and legal development.
THE SOMALI EXPERIENCE OF SHARI‘A
Shari‘a has provided hope to a number of contending parties in Somali history.[11] It has offered them an ideological, practical, and rhetorical justification for their desires. For instance, shari‘a offered hope to British colonial administrators who invoked their own interpretation of it, with some support from sheikhs in Mecca, in their communications with Sheikh Mohamed Abdullah Hassan during the early twentieth-century war against him and his followers. The sheikh entered this war with the hope that a deeper respect for shari‘a would unite Somali communities against colonial domination. Shari‘a was Sheikh Hassan’s source of resistance to the military and economic might of the British administration, even as colonial officials also sought to counter him through shari‘a.
Later postcolonial Somali rulers similarly relied on shari‘a to justify their authority. In the 1970s, President Mohamed Siyad Barre went to great lengths to claim that his socialist rule was compatible with shari‘a, much as the British had done decades earlier. But, when threatened, Siyad Barre’s regime also put to death sheikhs who called out the regime’s new family law for its incompatibility with shari‘a. A generation later, in the 2000s, the Islamic Courts Union in Mogadishu and the de facto independent government in Hargeisa both performed what they believed to be God’s will by creating Islamic forms of dispute resolution and Islamic governments. Both groups successfully consolidated peace in their communities. But an Ethiopian-led and American-backed incursion in 2006, fueled by concerns about the rise of an Islamic state in Africa, crushed Mogadishu’s most forward-thinking Muslim jurists.
Activist women in the Horn of Africa continue to use shari‘a to fight for gender equality and political freedoms, particularly when they find other justifications for women’s rights to be culturally inaccessible. For example, these activists empower women to go to school, teach, and run for public office by showing how these rights are consistent with Qur’anic verses. Their efforts to ensure people view gender equality as part of Islam are sincere. Championing this version of shari‘a is also pragmatic in a polity that largely views the goals of international law with the same skepticism Somalis had of the goals of colonial law. Even Somali elders who claim that customary law is the central feature of Somali communal life tie the importance of the family or of the rules of patrilineal clans to their consistency with Islam, just as modern constitution drafters in Somaliland and Somalia also declared Islam the foundation of their governments.
These myriad actors across historical periods in Somaliland and Somalia – colonial officials, religious leaders, community elders, authoritarian regimes, and activists – could not be more different. But they all have invoked their own interpretations of God’s will, and they all also have had to contend with their adversaries’ opposing interpretations of it. In the long run, as the elite actors struggle to present their own shari‘a, God’s will becomes an enduring source of hope, fear, frustration, and law, even as its precise contours are contested. Conflicting interpretations of and contestations around shari‘a, as well as its rhetorical, cultural, and social power, create active and divergent forms of legal politics, all in some way involving shari‘a.
To bring into sharper focus the relationship between the principles animating the discourses of shari‘a and the rule of law, in the sections of this chapter that follow I first define the rule of law and its relationship to religion. Second, I define the essential elements of shari‘a in the context of Islam’s connection to the rule-of-law ideal. Third, I explain the region’s radical legal pluralism and show how and why Islamic principles and the rule of law inform one another. Together, and through the example of Somaliland and Somalia, these sections help to generate a socio-legal theory of shari‘a.
INTERPRETING THE RULE OF LAW
Legal scholars have disagreed over how to define, measure, and promote the rule of law.[12] But they agree that the rule of law is about restraining coercive power; it is a structure of governance in which the law limits the arbitrary power of state officials. But the rule of law also has broader appeal for international policymakers: when law and legal systems configure and constrain social, economic, and political relations, people can resolve disputes peacefully, and their societies can become more politically and economically successful.[13] Thus, a country with a deep respect for the rule of law is one in which citizens know what to expect from their governments. Those expectations typically include robust forms of political liberalism, including regular, free, and fair elections; limited and transparent governance; independent courts that are not the lackeys of any officials; and the promotion of human rights, equality, and liberty for all, paying special attention to a society’s most vulnerable or marginalized persons, such as women, children, and members of minority ethnic or religious groups.
The World Justice Project says that the rule of law has four domains: government accountability, clear and evenly applied laws, fair processes, and an ethical and independent judicial authority. These four domains are widely viewed as an antidote to authoritarianism and state corruption. Legal scholars and policymakers have also long understood the rule of law as a bulwark against violence or terrorism. Verifying this conclusion empirically, Seung-Whan Choi studied 131 countries from 1984 to 2004 and found that the rule of law, evidenced by fair elections and impartial judiciaries, limited citizens’ willingness to participate in political violence, which in the long term reduced the likelihood of terrorist events.[14]
The United Nations General Assembly, gathering in 2012 for its first high-level meeting devoted to the rule of law, declared the rule of law to be the foundation of all “just societies” and “equitable state relations.”[15] The administrator of the United Nations Development Programme similarly said that “The rule of law is at the very heart of what is needed for human development.”[16] For UN officials, the rule of law is as much an outcome as it is a set of processes associated with building state structures that promote due process, social justice, civil rights, economic development, and the expectation of reasonable state behavior.
In global political history, such a perfect rule of law has been, alas, a “rare achievement.”[17] Ideals like the rule of law, however clear or compelling to the mind, do not fit neatly into reality, particularly in the context of colonialism, violence, or human and environmental disaster. The models must be made real by humans who are themselves imperfect, a point emphasized by legal philosophers and historians.[18] To build trust, UN agencies and other aid groups must give a “a local face and local legitimacy” to their projects promoting the rule of law and other international norms.[19] In practice, the rule of law may look “thicker” or “thinner” depending on the political processes and power relations that produce it.[20] Political elites may seek to promote legitimacy, authority, or even repression by building legal institutions associated with some of the rule of law’s principles.[21]
Studying the rule of law, then, is both a normative concern of legal philosophy and an empirical concern of social science.[22] As a normative matter, rule-of-law principles nourish the work of legal activists. As an empirical matter, those principles may be studied, and even criticized, when state officials or legal activists try to achieve them.
In this book, I examine the rule-of-law ideal through an empirically grounded lens, by rooting the ideal in a specific history, context, and set of practices. I privilege the stories found along the precarious path toward the rule of law, rather than the perfected, philosophical ideal at the end of that path. These stories include admirable moments when political leaders or activists struggle for the rule of law, as well as lamentable moments when those same people succumb to more tempting, selfish desires. As we shall see, practices associated with the rule of law are as broken, inconsistent, and discordant as individual people.[23] Elusive though it may be, the rule of law is nevertheless the goal toward which aid workers, legal scholars, and policymakers continually strive, particularly when they work in or study societies emerging from civil war.
Policymakers, legal scholars, and the public do not doubt the rule of law’s significance. What is less clear is how societies facing legacies of civil war and legal or religious pluralism should begin to implement the rule of law’s principles. Typically, legal development projects in conflict and post-conflict settings share a common design: international lawyers, diplomats, and aid workers arrive carrying the mantle of human rights and use it to build up national governments.[24] These foreign officials then encourage new state leaders (themselves oftentimes militiamen) to “harmonize” different legal systems under a single, modern constitutional framework and to construct independent government bureaucracies, judiciaries, law schools, and prison systems that adhere to those constitutional values.[25] The intense focus on achieving the rule of law – through state-building, constitution-writing, and legal training initiatives – obscures from view the problems associated with cultivating the rule of law from the ground up. The failure to pay deep attention to the productive capacity of religious law ranks among the problems disturbingly present in international legal development activities.
British colonial administrations in Muslim-majority societies offer an important empirical example of the relationship between religious power and the rule of law. British colonial officials went to great lengths not to excise religion from the state; rather, they subsumed and regulated it. Colonial officials integrated Islam into the colonial enterprise by limiting Islam’s legal jurisdiction to disputes within families, such as divorce and inheritance. Cases were handled by specially designated “Mohammedan” courts whose judges (called qadis) were paid by and answered to the colonial administration, which merged imperial objectives into the process of building legal institutions and turned the rule of law into an instrument of empire. This process of managing religion and imperializing the rule of law showed local officials how to limit state power while it promoted injustices in courts and prisons, the very institutions meant to uphold the rule of law.[26]
Thus, colonial secularism was not the absence of religion as much as it was the active management of religion, as part of a bid to earn people’s respect for the rule of law. For at least a short time and for some people, the process did work in the way colonial administrators intended. As a result, in Muslim-majority states transitioning to independence, young democratic-minded political elites who had worked for colonial administrations made the decision to compartmentalize or even reject religious law just as their colonial bosses had done. Many new officials in former British colonies, for instance, saw their states to independence by giving continued priority to English common law and sidelining religious jurists, which stunted the development of progressive versions of religious law and opened up space for more extremist versions.[27]
While colonial elites recognized the need to work with religion, modern policymakers and scholars have largely abandoned the notion that religion can be a part of the rule of law. In fact, protecting religion – much like preserving local “culture” – has often been the preferred justification of dictators seeking to deny rights to women or minorities.[28] In early modern Europe, among other places, protecting religious rights and liberties encouraged racism, homophobia, and the subjugation of women.[29] Some scholars have argued that, even if other religions can help introduce principles associated with the rule of law, Islam is unlikely to help do so. Professors of finance and banking have concluded that the rule of law is more durable in Protestant-majority and Catholic-majority countries – where corruption is lower and economic development is stronger – than in Muslim-majority countries.[30] Economic historians have argued that indigenous and decentralized Islamic legal practices – not European colonialism – held Muslim-majority regions back from achieving long-term political stability, economic growth, and the rule of law.[31]
Contemporary socio-legal scholars have, at best, asked whether courts, constitutions and the rule of law can resolve religious conflicts.[32] But the influence can also move in the opposite direction. That is, religion can help resolve legal troubles and prevent provincialism and intolerance. Modern Somali history is, in fact, a case study in the coexistence of religion and the desire to build limited government, justice, and order, even if ordinary Somalis do not always name these desires as the “rule of law.” Somali political leaders, however, have long reflected on what the rule of law means, and religion has long been a commonsense component of the meaning of the rule of law. In a 1968 speech to Royal African Society in London, England, the Prime Minister of the Somali Republic, Mohamed Haji Ibrahim Egal, stated that his government promoted the rule of law not through its received European laws but through the people’s Somali heritage and grassroots relationships.[33] He used the term “rule of law” in relation to people’s shared religious tradition (Islam), shared language and poetry (Somali), and shared culture (in which interpersonal disputes are resolved by community leaders using local norms).
The emotional potentialities of law and religion swing in many directions. In societies facing legacies of political violence, the path to order, stability, and peace may be stained by the blood of victims of political elites who had promoted legal or religious change. But there is little research to suggest that rights and duties that come from religion present, on their own, a direct threat to the rule of law, especially when a consciousness of God can evoke a deeper consciousness of ethics, and vice versa.[34] As with the normative principles of the rule of law, religious principles can just as easily be used to promote human rights, limited government, fairness, dignity, responsibility, and justice.[35]
By more clearly articulating what the rule of law means in strongly religious societies, where it comes from, and its relationship with religion and religious duties, Shari‘a, Inshallah informs the practice of the rule of law.[36] Contemporary conceptions of the rule of law – exported by American or European lawyers to the Global South – are constrained by the belief that religion ought to be governed and managed, while rights become a kind of unmanaged “religion” that can stand on their own self-assertive authority.[37] For this reason, rule of-law advocacy typically promotes religious freedom within clearly defined limits, by excising religious thought from the public sphere or tacitly treating religion as separate from – or even contrary to – the goals of legal development and human rights.[38] This advocacy obscures how religion may, in fact, be doing some of the very work of the rule of law.
INTERPRETING SHARI‘A
A civic activist I met in Hargeisa told me that preventing women from participating in politics was, in her words, “not international-legal and not Islamic-legal.”[39] In her mind, international rule-of-law projects that sought to empower women to vote and seek political office were entirely consistent with the Islamic goals of maintaining women’s rights and dignity. As shown in these pages, the values of shari‘a as understood in Muslim-majority countries share much in common with the values that Western legal scholars and international policymakers associate with the rule of law. To show that, an overview of Islam and shari‘a is necessary. Islam comes from the Arabic word, aslama, which means “to submit.” “Islam” is commonly translated as “submission to God.” A Muslim is a person who submits to God’s will and the religion of Islam. Muslims trace their lineage through the prophets who carried the message of God (whom Islam labels God’s messengers), including the major figures of Judaism and Christianity such as Adam, Moses, David, and Jesus.
Islam’s Political History
The Prophet Muhammad first received a revelation from God when he was forty years old, while on a personal mountain retreat near Mecca in present-day Saudi Arabia. He continued to have these revelations until he died in the city-state of Medina at the age of sixty-three. God’s words to Muhammad were orally preserved during the Prophet’s lifetime and later reordered into verses of the Qur’an. After the Prophet’s death, this holy book was codified into a single document of 114 chapters (soorah) totaling 6,236 verses (ayat). The text was preserved by Muhammad’s surviving wife, Aisha, whom Islamic studies scholars credit with helping Islam thrive after the Prophet’s death. The Prophet Muhammad’s statements, actions, and tacit approvals, all carefully documented during the last twenty-three years of his life, are collectively labeled the Sunnah or, when gathered in written form, the Hadith. Today, the Qur’an and the Hadith are the two primary source materials for shari‘a.
According to the Prophet Muhammad, as revealed in the Hadith of the Angel Gabriel, Islam is made up of three constituent parts: legal, theological, and spiritual (Table 1.1). Together, these prescribe particular modes of worship as well as beliefs, good works, and treating people and the environment well.
Table 1.1 Legal, theological, and spiritual aspects of Islam
| Legal Aspects of Islam (islam) | Theological Aspects of Islam (iman) | Spiritual Aspects of Islam (ihsan) |
| Shahada (testimony of faith that there is one God and that Muhammad is God’s final messenger)
Salat (prayer) Zakat (helping the poor) Sawm (fasting) Hajj (pilgrimage to the ka‘bah, considered the first house of God, in Mecca) |
Belief in God
Belief in God’s angels Belief in God’s messengers Belief in God’s holy books Belief in the last day of judgment Belief that God’s will is predetermined (qatr) |
Living through good works, knowing that one acts – worships, conducts business affairs, participates in family and community, and commits not to injure others and the environment – in order to please God |
Source: Compiled by the author, from the Hadith of Gabriel.
The legal aspects of Islam are collectively labeled islam. (Technically, the word “Islam” refers both to the legal aspects of the religion, when discussed in relation to Islam’s theological and spiritual aspects, and to the broader religion of the same name.) These are (1) shahada (the testimony that there is only one God and that Muhammad is God’s final messenger); (2) salat (regular prayer, usually at least five times each day); (3) zakat (helping the poor); (4) sawm (fasting, typically from all food and drink during daylight hours during the holy month of Ramadan); and (5) hajj (pilgrimage to the ka‘bah in Mecca, considered to be the first house of God). These five legal pillars primarily govern worship, but they also reach into political and social life, including business transactions, relationships, and crimes. These pillars constitute Islam’s outward-facing posture, or actions that Muslims must take openly in order to accept Islam.[40]
The theological aspects of Islam, according to the Hadith of the Angel Gabriel, are collectively labeled iman, or faith. These are belief in (1) God, (2) God’s angels, (3) God’s messengers, (4) God’s holy books, (5) the last day of judgment, and (6) God’s unknowable and predetermined will (qatr, or consciousness that life events, behaviors, and choices occur through or are known only by the will of God, or inshallah). These six beliefs are Islam’s inward-facing posture, for each Muslim to believe on their own.
Finally, the Hadith of the Angel Gabriel explains that there is one spiritual aspect of Islam, called ihsan, which refers to participating in social, political, and financial relationships as if God were always observing and judging the goodness of one’s actions. That is, Islam calls one to live through honesty and good works in one’s business transactions, one’s worship of God, one’s participation in family and community, and one’s commitment to minimizing harm to others and to the environment.
The legal pillars, theological beliefs, and the spiritual notion that God is always watching form the basis of Islam. While the Hadith of the Angel Gabriel separates these aspects, in practice many lay Muslims may make little or no distinction between what Hadith scholars might portray as the legal, theological, or spiritual aspects of Islam. For many of these persons, the legal parts of Islam may be inseparable from faith, honest participation in relationships with others, and good works.
Critical to understanding the tenets of shari‘a is attaining an awareness of how Islamic tradition spread and of its social and political history during and immediately after the Prophet Muhammad’s lifetime. While the Prophet Muhammad was spreading the values of Islam in Mecca (610–622 CE), the religion grew rapidly. During these first thirteen years of Islam, the Prophet united diverse people – many of whom were practicing different forms of idolatry or polytheism – through regular prayers that recognized monotheism, or the oneness of God (tawhid). Tawhid denotes God’s primary right: to be worshipped singularly, without any partner or co-equal.
The Prophet went further than uniting people in the practice of monotheism. He called the new Muslims of Mecca to practice social, racial, and gender justice in all their affairs. He advocated for equality among the different ethnic and tribal groups of the region (in his words, according to a generally accepted Hadith, equality “between Black and white … and between Arabs and non-Arabs”). Promoting this notion of equality was remarkable in a region where many people were either slave-owners or at war with neighboring tribes, or both. Nonviolence, self-defense, and freeing slaves became important parts of Islamic practice and belief. For instance, if a man broke a promise or a fast, or if he harmed another person or God, Islam demanded that the man free a slave as atonement. Over time, as more people accepted Islam and atoned for any harmful actions, more slaves were freed. This form of justice came alongside gender justice through an expanded notion of women’s inheritance. Contrary to local practices at the time, the Prophet demanded that women have rights to their husbands’ property and finances. Calling for women to inherit, for slaves to be freed, and for ethnic and racial equality were disruptive propositions in Mecca in the 600s, and they were Islam’s first steps toward promoting goals like those that contemporary legal scholars now associate with the rule of law.
Monotheism and an understanding of Islamic ethics – social justice, women’s rights, and duties owed to God and others – emerged long before any specific legal regulations in Islam. Legal regulations arose in the second phase of Islam’s expansion during the Prophet’s lifetime, when he moved to Medina at the age of fifty-three, where he lived for ten years until his death in 632 CE. In Medina, the Prophet cemented his role not just as a religious leader but also as a political leader and jurist. Each regulation he discussed and each case he adjudicated in Medina had a clear rationale in Islamic theology or practice. One example is the full prohibition of intoxication (e.g., drinking alcohol), which crystallized in Medina after the Prophet spoke of the difficulty of reaching sufficient clarity of mind for daily prayers that are each just a few hours apart.
In the twenty-three years between the Prophet Muhammad’s experience of God outside of Mecca and his death in Medina, the Islamic religion and its impact on daily life would spread thousands of miles across southwestern Asia and northern Africa, growing from one person’s mountain retreat into a vast religious tradition and political empire. The earliest followers of Islam during this period engaged in at least seventy local battles and regional wars, leading to shari‘a regulations on self-defense, warfare, the treatment of prisoners, and a prohibition against torture. In Medina, regulations emerged in other areas, including business transactions, finance, and trusts.
The Indeterminate Nature of Shari‘a
Mainstream media and policy debates presume that shari‘a is powerful, barbaric, unitary, and unrestrained – “like a wild animal,” as one Somali activist put it to me. “And if … people hear that,” he continued, “of course [they] would be scared of it.”[41] Unlike these popular conceptions of it, however, shari‘a is broad, interpretive, plural, and flexible, encompassing process as much as substance. It shapes and is shaped by textual interpretation of the Qur’an and Hadith and by the political history of Islamic empires and states.[42] And though shari‘a encompasses much of Islam, the word only appears once in the Qur’an. Not as much a body of written laws, shari‘a has evolved into a living tradition of interpreting theological texts in history, culture, and context.
Learning what counts as a source of shari‘a, and the rules that allow people to discern those sources and use them to derive contemporary legislation, is a key part of studying shari‘a. The sub-discipline within Islamic legal studies of determining which sources matter, how those sources matter, and the rules of interpreting those sources, is called usul al-fiqh, or Islamic legal theory.[43] Collectively, the first twenty-three years of Islam are the most important period from the perspective of Islamic legal theory. During these twenty-three years the two major sources of shari‘a and, thus, the general sources of Islamic studies and Islamic legislation – the Qur’an and the Hadith – emerged. Scholars disagree about the other sources of shari‘a, but most would add two more: qiyas (deductive analogical reasoning by learned persons) and ijma (the consensus of the learned persons of a particular generation).[44] Both of these sources integrate into Islamic ethics and guide how learned persons interpret God’s will.
Shari‘a’s specifically derived regulations – often called legislation, though these rules predate by centuries the modern notion of the state and its legislative bodies – differ widely among Muslim intellectuals and regions of the world. The sub-discipline within Islamic legal studies of determining and parsing regulations and legislation is labeled fiqh, commonly translated as “Islamic law,” or the practical legal rulings of jurists who apply the sources of shari‘a to the facts of individual cases; they “deduc[e] Islamic laws from evidence found in Islamic sources.”[45] Major Islamic universities teach fiqh and usul al-fiqh as separate, multiyear courses. Fiqh has four branches; each regulates one of the main components of Islamic political and social life: worship, business transactions, family, and injuries or crimes. In these ways, shari‘a is as much about content and sources as it is about methods: how to interpret Islam’s source materials and what counts as source material in the first place.
The first major division between legal schools in Islam occurred about 660 CE over the lines of leadership and authority since the Prophet’s death a generation earlier. This division crystallized into two groups: Sunni Muslims, who accepted the first four caliphs (al-khulafa al-rashidoon) after the Prophet, and Shia Muslims, who believe that the fourth caliph, Ali (the Prophet’s son-in-law and cousin) had a “superior claim to leadership” over the three caliphs who preceded him.[46] Unlike the previous three, Ali was a member of the Prophet Muhammad’s family lineage, which matters deeply to Shia Muslims. Sunni and Shia legal schools also differ in their approaches to legal reasoning and their interpretation of the Qur’an and Hadith.
Sunni Islamic law is practiced widely across Africa and southwestern Asia. Across these thousands of miles and the first five centuries of Islam, dozens of schools of law took root. Today, four schools remain among Sunni Muslims: Hanbali, Hanafi, Shafi‘i and Maliki. Each school is named after a particular founder or leader (called an imam) and they disagree largely over matters of law found in jurists’ decisions, not over matters of faith. The Maliki and Shafi‘i schools of Sunni law have been practiced for the better part of a millennium among sheikhs and courts in northern and eastern Africa, including in Somaliland and Somalia.
Although fiqh and shari‘a are considered different disciplines in Islamic legal studies, the fact that Islam long accommodated hundreds of legal orders, each with its own forms of interpretation, means that the religion from the start accommodated legal pluralism and scholarly disagreement (ikhtilaaf) in its goal of understanding God’s will. Wael Hallaq, a contemporary scholar of Islamic law, argues that disagreement and pluralism are Islamic law’s “central feature,” which results in its special adaptability and flexibility, contrary to popular notions of Islam as rigid. Legal cases, for instance, may result in a dozen or more contradictory opinions, with no position taking a monopoly.[47] Similarly, the Qur’an and the Hadith, unlike modern statutes, should primarily appeal to individual conscience and morals. They are not to be used as lists of specific commands and prohibitions.[48]
In fact, modern Islamic legal studies scholars agree that shari‘a is a “faith and a moral code first” and that its function as “a legal code is relative and subsidiary.”[49] Law in Islam is “always … subservient to theology,”[50] making any separation between law and morality “neither feasible nor recommended” in shari‘a.[51] Nevertheless, as Islamic studies scholars have noted, there is a great “tendency to over-legalize Islam … in the writing of both Muslims and Orientalists … which does not find support in … the Qur’an and Sunnah (Hadith).”[52] Treating Islam as more legalistic than it is fails to attend to the ways that law, morality, theology, and faith are inseparable and how a collective notion of law and theology develops social and political principles of justice.
In terms of regulations, shari‘a is concerned with and classifies human activity, ranging from the obligatory (waajib) to the recommended (mandoob), permissible (mubaah), reprehensible (makrooh), and forbidden (haram). These classifications are designed to promote ethical conduct and respect for God, humans, and the earth. Ethical conduct does not always mean that citizens must obey their leaders at all times; shari‘a makes room for civil disobedience. People have a responsibility to obey their imams (religious leaders), but they may revolt against imams if revolting against them is not as harmful as living under their oppression. Indeed, religious scholars have argued that Muslims would be obligated to disobey an imam if he orders Muslims to disobey Islamic regulations on, for instance, daily prayer or alcohol consumption.[53]
Shari‘a predates the concept of the rule of law and the modern state in which the term developed. But many of the values associated with the modern term also have long existed within practices associated with shari‘a. Letting go of the presumption that shari‘a cannot build the rule of law, and starting with the possibility that it can, opens new avenues for socio-legal research on the rule of law in Muslim-majority contexts. That is, considering it possible for shari‘a to help in building the rule of law allows scholars and policymakers to see neglected phenomena and to ask more useful research questions about law’s power and its relationship to society and religion.
A Socio-Legal Approach to Shari‘a
The plural nature of shari‘a in theory, and the fact that the state as an entity was not envisaged at the time of Islam’s founding, makes it all the more important to study how shari‘a is put into practice in particular societies. Studying how political elites – state officials, lawyers, educated activists, and international aid workers – use the term helps uncover its changing configurations in politics. A socio-legal study of shari‘a becomes a way to address this gap between shari‘a in theory and actual practices in Muslim-majority societies.[54] For scholars of law and society who care about the law’s effects, what shari‘a does becomes more relevant than what it actually says.[55] That is, the empirical, interpretive, and historical methods of law and society are well-suited to investigating the interplay among shari‘a, social structures, political institutions, economic development, and cultural practices.
Like the meaning of the rule of law or the value of rights, shari‘a is socially and politically embedded. Socio-legal scholars have long argued that using legal tools or litigation strategies, even when those strategies fail, can still mobilize people into movements.[56] The discourse of rights works for people when they put it, and the malleable symbols of law, into practice to achieve pay equity, gender equality, or economic reform, among other aims. People may appropriate or even come to love human rights ideals, particularly when those ideals provide an alternative to discriminatory legislation.[57] The project of making rights visible has many beginnings; people’s views of what rights entail, what hope rights provide, and how to achieve those hopes emanate from personal and political beliefs, class backgrounds, experiences of discrimination, religious observances, or some combination.[58]In other words, religion matters for rights, and Islam is no exception.
Although anti-Muslim organizations often conflate shari‘a with extremism, at its core shari‘a’s radicalism resides in its plurality, not its rigidity.[59] Shari‘a accommodates many divergent legal opinions. As in any attempt by political authorities to integrate a belief system or legal system into the state, the intention of the person using the thing they call “Islamic” matters. While they may use Islam to combat the rule of law, they may also use it to build political values that outlast bad leaders and badly designed political institutions. For many contemporary Muslims, the desire for a more Islamic state may reflect a deeper wish to restrain state authorities.[60] Islamism is, thus, not merely a statement of one’s political leanings as much as it is the infusion of “law, politics, and society with Islamic values.”[61] Hegemony in Islam is not presumed or imprinted; it must be cultivated and, with so much internal disagreement among Islamic scholars, is easily resisted. In these ways, the meaning of shari‘a changes when it is put into practice, depending on who uses it and their social, political, and economic goals.
Ultimately, like many forms of law – domestic, international, and transnational – shari‘a rests on broad principles like justice (‘adl), being good to others (ihsan), and easing people’s hardships through moderation and balance (wasatiyya).[62] In practice, however, different people – from colonial administrators to state officials and contemporary aid workers – breathe their own meanings of justice, good conscience, and relief from hardship into shari‘a, just as they do into the law. Shari‘a has endured, though its meanings and uses have shifted across time and space.[63] For these reasons, to many lawyers, activists, and officials, shari‘a presents a particular form of legal power that they know they must engage, whether they assert it, constrain it, or challenge it.
In adopting a socio-legal approach to shari‘a, this book does not appeal to a nostalgic return to Islam’s roots in Mecca or Medina, or to Islamic originalism. The practical uses of shari‘a are regularly contested, and even defining the term and the intents with which people use it can be political acts. A socio-legal approach to shari‘a entails investigating the social disruptions, discontinuities, and disobediences that emerge when people invoke shari‘a to fight for freedom and limit the authority of those holding power. These disruptions existed at the arrival of Islam. They also appear in the development of many Muslim-majority societies and, as the remaining chapters show, throughout colonial and postcolonial Somali history.
LAW AND RELIGION IN SOMALI HISTORY
Somaliland and Somalia present an important case of the versatility of law and shari‘a. Their radical legal pluralism amidst the human struggle to survive political violence makes them even more critical settings for understanding the endurance of shari‘a and the hope that it can represent for the rule of law. Given the region’s multi-colonial legacies, the legal culture of the Horn of Africa is notable not for its absence of law but for the heterogeneity of its legal systems. In the twentieth century, Britain, France, Italy, Ethiopia, and Kenya each at various times staked ownership claims or possessory rights over the various parts of the Horn of Africa where Somalis lived. They brought with them ideas about laws, legal institutions, and geopolitical borders that Somalis would use or integrate into their own. European administrators departed during the 1950s and 1960s, paving the way for the region’s decades-long alternations between democratic, socialist, and authoritarian rule; civil war; and state collapse. Across these political machinations, Somali communities created and used their own forms of dispute resolution – informed in part by religion, tradition, and colonial heritage – to assert local forms of order. Such highly localized dispute resolution further fragmented the law, giving the state much less control over disputes than it has in other societies with stronger and less heterogeneous legal systems.
Both its colonial legacies and its local needs, therefore, inform the Horn of Africa’s legal pluralism. This pluralism is matched by the homogenizing actions of colonial administrators, government officials, and foreign aid workers seeking to create a single legal system that the state, even if weak, can control. Despite these efforts, Islam over time has emerged as a centralizing and unifying feature across these diverse ways of maintaining peace and order. That is, Islam and shari‘a are the most unifying legal forces in Somaliland and Somalia, despite the fact that colonial administrations, state officials, and aid workers have encouraged the development of state legal systems that subsume and regulate religion. “It is difficult,” according to one Somali aid worker I met in Kenya, “for Somalis to recall what legal system existed prior to Islam.”[64] To them, Islam is the cornerstone of human life and, thus, woven into society’s legal fabric. Despite the different European and African legal legacies infused into Somali society, “there is one legal history … in common, and that is Islam.”[65]
Islam arrived in the Horn of Africa in the seventh century during the caliphate of Abu Bakr, the successor to the Prophet Muhammad.[66] The religion began to flourish, but it collapsed as the Horn of Africa entered a period of chaos and tribal rule. In the twelfth century, Muslim sheikhs from the Arabian Peninsula arrived as missionaries to revive African Islam and made the earliest known attempts to build what contemporary legal scholars would now call the rule of law in the region. The Muslim missionaries’ goal was to unite disparate groups of Africans across the Horn by preaching about how Islam would help them build peace and create stable, non-arbitrary rules to govern relations amongst themselves.[67] Their preaching attracted new followers and, by the fifteenth century, Islam became the major religion in the Horn.[68]Awareness of this early history means that Somalis continue to see Islam as part of the project of building the institutions of the modern state. Islam matters not only as a religion, but also as a deeply ingrained political culture with oral traditions handed down to each new generation. In contemporary practice, many persons I met felt driven to resolve disputes through religious principles out of “simplicity,” as one Somali lawyer told me. “There are no lawyers … . In shari‘a there is a duty on the … judge to find the truth.”[69]
Although Islam is a central and shared feature among the Somalis of the Horn of Africa, they also have a common language and common social structures in which patrilineal relations create trust and status. Twentieth-century European anthropologists typically called this scheme of trust and status Somalia’s “clan” system. The clan system that European anthropologists, who often worked with or on behalf of colonial administrations, attributed to Somalis has remained scholars’ and policymakers’ primary designator for Somali society. Somalis, international aid workers, and government officials whom I met used it regularly to explain local cultural norms and practices to me and to one another. While one’s clan gives one kin with whom to connect, the clan is more than a patrilineal origin or a network tying together a few dozen to a few hundred people. It is also an insurance policy whereby an aggrieved party – for instance, the victim of a vehicle theft or the survivor of a vehicle collision – appeals to the sultan of their clan to negotiate a settlement with the sultan of the clan whose member caused the injury or harm. No settlement is unique or arbitrary; each is based on precedent between those two communities when similar past vehicle thefts or collisions occurred. If the harm is totally new – such as the theft of an iPad – then its settlement becomes precedent for future similar harms suffered between those two communities. In the long term, like insurance schemes and court systems, the process protects the two groups from retributory violence. The rules of these settlements – collectively called xeer – draw from local custom and from shari‘a, which inform one another. The devotion to family lineage is so entrenched in society that Somalis joke that one’s clan may be more important than religion, even to the most pious: “Sheikh tolkiis kama janno tego,” or “Even the sheikh will choose loyalty to his clan over paradise.”[70]
The clan system creates some semblance of order between local communities. Islam is a central feature of that social fabric, tying disparate groups to a legacy transmitted across generations and places.[71] That is, while Somalis and many scholars who study the place often emphasize the clan as the central unit of Somali identity, religion is a life-thread of social identity throughout the region. Islam matters in the stories people share about themselves. “If people are not satisfied [or] see injustice,” one young lawyer told me, “that drives them to shari‘a.”[72] Despite their many clans and contemporary family lines, Somalis nevertheless “claim a common descent from Quraish, the tribe of the Prophet Mohammed.”[73] More recently, in the wake of the state’s collapse in 1991, leaders from diverse clans that sought to return law and order to Mogadishu turned first to Islam, setting up their own shari‘a courts in the city. While fragmented clan mechanisms of settling disputes are common, Islam continues to play a lasting and unifying role in society.
A Case in Disaster
Excepting discussions of Somaliland’s political stability relative to that of Somalia, rarely do scholars write about the region as exemplifying even minimal political or legal success.[74] Rather, they regard Somalia as the archetype of political disaster. Writing in 1995, four years after President Siyad Barre fled Mogadishu and the country descended into warlord rule, political scientist Ken Menkhaus and policy analyst John Prendergast argued that “There was never in Somalia’s history a sustainable basis for a viable central state authority.”[75] Peter Woodward, a historian of the region, similarly argued that the Somali state and the authoritarian regime of Mohamed Siyad Barre had become almost synonymous, such that when that regime collapsed, it took the state with it.[76]
The perspective that Somalia is the world’s bastion of lawlessness is underscored by decades of authoritarian and warlord rule, millions of refugees who fled the country, and thirteen failed national peace conferences during the 1990s.[77] As anthropologist Anna Simons writes, disaster was fueled not by any single political party or matter, but by a misunderstanding on all sides:
Expatriates … misunderstood Somalis, Somalis misunderstood one another, the West misperceived the “state” of Somalia, the regime in Somalia misunderstood its exact place in the world, and all sides mistook the extent to which they could or could not influence events and each other. And the compounded result of all of this misunderstanding has been singular disaster.[78]
Some scholars of Somaliland and Somalia have noted that the region’s myriad problems and weak rule of law stem from the political extremes toward which Somalis have been pushed: the fight for secularism on the one hand and the promotion of unfettered religious radicalism on the other hand. To these scholars, the tension between these two extremes brought about a moral breakdown, including when Somalis used Islam to pursue nefarious political goals or satisfy personal impulses.[79] However, political elites turn to shari‘a even as they disagree about it.
The Somali Legal Order
Most people would presume that the Horn of Africa represents an extreme setting where shari‘a is the tool of jihadists, autocrats, and warlords seeking to justify irrationality and violence. Amidst political discord and fragmentation, however, Somalis have time and again used shari‘a to fight colonialism, challenge dictatorship, and limit the power of militants and warlords.
For example, Somaliland’s experimental democracy since 1991 has provided strong evidence of peacebuilding and political progress, and shari‘a has been an important part of that transition. Somaliland was unified with Somalia in 1960, days after its colonial independence was granted, but that union was de facto broken in May 1991 when Somaliland reasserted its nationhood. Putting down guns and deliberating over peace accords mattered in the short term. But when it came time to consider a long-term solution that would be viable across Somaliland, a national constitution was drafted and put into force in 2001 that framed Islam as the primary source of Somaliland’s law. These Islamic provisions of the constitution provide a basis for citizens and interest groups to challenge any laws passed by the government in order to ensure they are consistent with the principles within shari‘a of justice and fairness. The constitution also includes a bill of rights, ostensibly rooted in international human rights law, yet constitutional architects I met made clear that both shari‘a and international law were working together to create a broader set of political principles to guide the new nation.
Somalis and foreign aid workers often explained to me that the Somali people in the Horn of Africa have three overlapping legal systems – or three pivots of the same legal system. One is based largely on shari‘a, a second on Somali custom, and a third on laws created by the state or by foreign or international entities.[80] As one Somali told me, when he and his family members had disputes, they entered any forum they could – those led by sheikhs, elders, or state court judges – to achieve their desired results.[81] Like many others I met, he was pragmatic about using a variety of legal systems or venues to pursue his goals. Because these diverse systems have coexisted since the nineteenth-century arrival of Western powers to the Horn of Africa, law plays an outsize role in social relations but, as a former senior minister told me, “not in the Western sense.”[82]
I asked my interviewees to describe these three Somali legal systems or orders, and the results were remarkable. Collectively they used only a handful of words to define shari‘a and custom, seeing these two legal orders as distinct, but fairly unitary. But they defined the third legal system in much more amorphous terms (Table 1.2). Some called it “law,” while others referred to it variously as colonial law, Western law, authoritarian law, and international law.
This lumping of terms like “international law,” “human rights,” and the “rule of law” with colonialism and authoritarianism led Somalis to see the modern concept of the rule of law as, at best, amorphous or, at worst, yet another imposition linked with the problems of foreign military intervention and also as contrary to shari‘a.[83] The Somalis I met did not often use the term “rule of law” itself – unless I asked them or they were speaking about a “rule-of-law program” instituted by the local United Nations office. But when they did mention it, they placed it in the same category as authoritarian law, colonial law, and Western law. The term rule of law carried weight for foreign diplomats, aid workers, and the Somalis who worked most closely with these groups. But the principles within it were still important to Somali people who spoke to me about the ideals they wanted to see in society and how they saw Islam fulfilling them. Those ideals included a limited state that responds to people’s needs and promotes justice and environmental protection – in other words, they often matched the values that Western lawyers and international policymakers relate to the rule of law. Somalis I met largely saw shari‘a as the “effective law.”[84]
Table 1.2 Terms for Somali legal orders
| Shari‘a | Xeer | Law |
| Islam
“Effective law” |
Customary
Traditional Informal Pastoral Clan law |
Formal system
Courts Formal law State law Secular law Civil code Civil courts Conventional law Rule of law Government law British law and statutes Civil law European law European colonial legal system Indian penal code imported by British colonial administrators Constitution Codified law Statutory law Positive law Modern law National law Colonial law Western law International law Continental law “The new legal systems of the international community” “Laws enacted by Parliament” “Socialist law under Siyad Barre” “Ordinary judicial system” “What do they call [this] one? Is it secular? It confuses me sometimes” |
Source: Derived from author interviews.
When I asked how the notion of human rights fit into the commonly discussed tripartite format of law in Somaliland and Somalia, some said it was part of shari‘a and others saw it as operating within the state. Like the term rule of law, “human rights” as a term (rather than as a principle) was something largely foreign or implemented by foreigners, even though shari‘a has its own conceptions of rights, protections, and duties derived from the Qur’an and the Hadith. These various ways of talking about custom, religion, and law continue to guide people’s habits and views of what is familiar and what is foreign. And these diverse meanings of the legal order exist alongside a broader perception that the “law” itself still resides in the state’s texts. As one former judge told me, despite myriad competing and overlapping legal systems, and many legal codes drafted or finalized, “People [still] say there are not a lot of laws here.”[85]
Beyond the Horn of Africa
While the conclusions in Shari‘a, Inshallah are based on Somaliland and Somalia, these are not the only political spaces where shari‘a has existed or an Islamic-based statehood has been desired.[86] For example, Sudan has defined itself politically under Islam, saturating state rhetoric and laws with it as well as, more importantly, radio, television, public advertisements, and art.[87] In northern Nigeria, people have come to see shari‘a as an alternative system that would curb the excesses and corruption of secular political institutions. Following US-led invasions, the 2004 constitution of Afghanistan and the 2005 constitution of Iraq both put Islamic identity and jurisprudence at the center of the countries’ legal development. The first part of the Malaysian constitution designates Islam as the country’s official religion. Egypt, Iran, Libya, Pakistan, and Tunisia have similarly constituted themselves on Islamic terms. In diverse contexts in Africa and Asia, people have placed their hopes of ensuring immediate survival and long-term social and political health in their own ideas of an Islamic state.
This phenomenon is not new. In British Somaliland, colonial administrators also found hope in the idea that their vision of Islam would hold back Somali anti-colonial activists, while those activists similarly turned shari‘a against the British. Likewise, Siyad Barre justified his postcolonial dictatorship by claiming that socialist principles were consistent with Islam, while the sheikhs who disagreed with him did so on religious grounds, and paid for their disagreement with their lives. Muslim activists continue to use religious principles to promote gender justice in politics and daily life in the Horn of Africa and beyond it.
Somali society’s different political epochs, diverse as they have been, are marked by extreme forms of competition between distinct legal orders vying for the attention of political elites – state leaders, chiefs, sultans, aqils, elders, and sheikhs – and everyday people seeking to resolve their disputes. Through it all, they agree on the importance of Islam. If there is to be any single state or group of states for Somalis in the Horn of Africa, people consistently told me, these states would have to be Islamic, or at least consistent with Islam in name if not in practice. Somali political elites’ attempts at state-building reveal how shari‘a has come to mean different things when put into practice, depending on the goals of the actor using shari‘a. Ultimately, shari‘a matters to all of them, as they invest their private hopes into shari‘a, and then work shari‘a into the state.
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NOTES
[1] See, for example, Keebet von Benda-Beckmann, “Forum Shopping and Shopping Forums: Dispute Processing in a Minangkabau Village in West Sumatra,” 13(19) The Journal of Legal Pluralism and Unofficial Law (1981): 117–159. On the “radical, pervasive legal pluralism [that] is a general feature of modern societies,” see Roger Cotterrell, “Still Afraid of Legal Pluralism? Encountering Santi Romano,” 45(2) Law & Social Inquiry (2020): 539–558, p. 540.
[2] On how legal orders thrive in even the most desolate, unforgiving, and brutal political environments in contemporary human history, including Nazi Germany and apartheid South Africa, see Jens Meierhenrich, The Remnants of the Rechsstaat: An Ethnography of Nazi Law (Oxford: Oxford University Press, 2018) and Jens Meierhenrich, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000 (Cambridge: Cambridge University Press, 2008). Contemporary authoritarian states similarly use law and courts to achieve their political, economic, and social goals. See, for example, Nick Cheesman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge: Cambridge University Press, 2015); Mark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan (Cambridge: Cambridge University Press, 2013a); Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007); Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore (Cambridge: Cambridge University Press, 2012); Rachel E. Stern, Environmental Litigation in China: A Study in Political Ambivalence (Cambridge: Cambridge University Press, 2013).
[3] Anthropologist Peter D. Little has critiqued the notion of statelessness – the dearth of governing structures and political institutions – for it does not necessarily correlate with social chaos or economic anarchy. He demonstrates how, in the absence of government during the 1990s, Somalis conducting business transactions with one another created local economic markets that flourished. Peter D. Little, Somalia: Economy without a State (Bloomington: Indiana University Press, 2003).
[4] This problem of integrating heterogeneous legal systems began as early as independence from colonial rule. See, e.g., “Integration of the Laws in the Somali Republic: Report on the Work of the Consultative Commission for Integration from its Inception Until 31st March, 1964” 8(2) Journal of African Law (1964): 56–58. Decades later, in its 2011 “universal periodic review” submission to the United Nations Office of the High Commissioner for Human Rights, Somalia’s Transitional Federal Government described “the harmonization between Sharia law, Somali customary law and modern law” as its primary challenge. United Nations Office of the High Commissioner for Human Rights, “Addressing Impunity in Somalia,” April 13, 2012, https://bit.ly/37THXpx (accessed January 1, 2021).
[5] Madhavi Sunder, “Piercing the Veil,” 112 Yale Law Journal (2003): 1399–1472, p. 1402.
[6] Ken Menkhaus, “Governance without Government in Somalia: Spoilers, State Building, and the Politics of Coping,” 31(3) International Security (2007a): 74–106, p. 70.
[7] Interview 126 with Dhahir, senior university administrator in Borama, Somaliland (conducted in Hargeisa, Somaliland) (June 2014).
[8] On how activists and movements use frames – of values, beliefs, and meanings – to mobilize people into action, see Robert D. Benford and David A. Snow, “Framing Processes and Social Movements,” 26 Annual Review of Sociology (2000): 611–639; David A. Snow and Robert D. Benford, “Master Frames and Cycles of Protest,” in Frontiers in Social Movement Theory, eds. Aldon D. Morris and Carol McClurg Mueller (New Haven, CT: Yale University Press, 1992), 133–155. On shari‘a as a frame for Somali law and custom, see Khaled Abou-Elyousr, “Understanding the Somalia Justice Systems: Challenges and the Way Forward,” unpublished paper, December 2016 (copy on file with author); Mehari Taddele Maru, “The Future of Somalia’s Legal System and Its Contribution to Peace and Development,” 4(1) Journal of Peacebuilding and Development (2008): 1–15.
[9] On shari‘a as a “taboo” of state law, see Matthew Erie, “Shari‘a as Taboo of Modern Law: Halal Food, Islamophobia, and China,” 33(3) Journal of Law & Religion (2018): 390–420.
[10] On the study of legal politics, see Mark Fathi Massoud, “Reflections on the Future of Global Legal Studies,” 25(2) Indiana Journal of Global Legal Studies (2018b): 569–581; see also Massoud (2013a), 21, 24–27.
[11] On hope as a “common operative” and a method of knowledge production, see Hirokazu Miyazaki, The Method of Hope: Anthropology, Philosophy, and Fijian Knowledge (Stanford, CA: Stanford University Press, 2004).
[12] Martin Krygier, “Four Puzzles About the Rule of Law: Why, What, Where? And Who Cares?” in Getting to the Rule of Law: Nomos No. 50, ed. J. E. Fleming (New York: New York University Press, 2011b), 64–104. On the conceptual, normative, strategic, and empirical claims made about the rule of law, particularly in light of the violence against ethnic and religious minorities, see Paul Gowder, The Rule of Law in the Real World (Cambridge: Cambridge University Press, 2016).
[13] Massoud (2013a), 21–23. Countries with a robust rule of law offer a “well-functioning, procedurally guided, independent and rights-based legal system.” Nicholas Rush Smith, Contradictions of Democracy: Vigilantism and Rights in Post-Apartheid South Africa (Oxford: Oxford University Press, 2019), 85.
[14] Seung-Whan Choi, “Fighting Terrorism through the Rule of Law?” 54(6) Journal of Conflict Resolution (2010): 940–966.
[15] United Nations General Assembly, “World Leaders Adopt Declaration Reaffirming Rule of Law as Foundation for Building Equitable State Relations, Just Societies,” Sixty-seventh General Assembly, GA/11290, 2012, https://bit.ly/38DsDwp (accessed January 1, 2021).
[16] Ibid.
[17] Martin Krygier, “Approaching the Rule of Law,” in The Rule of Law in Afghanistan: Missing in Inaction, ed. Whit Mason (Cambridge: Cambridge University Press, 2011a), 15.
[18] Douglas Hay, “Property, Authority, and the Criminal Law,” in Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, eds. D. Hay, P. Linebaugh, J. G. Rule, E. P. Thompson, and C. Winslow (New York: Pantheon Press, 1975), 17–64; Morton J. Horwitz, “The Rule of Law: An Unqualified Human Good?” 86 Yale Law Journal (1977): 561–566; E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975); Sanford Levinson and Jack M. Balkin, “Morton Horwitz Wrestles with the Rule of Law,” in Transformations in American Legal History II: Law, Ideology, and Morals: Essays in Honor of Morton J. Horwitz, eds. Daniel W. Hamilton and Alfred L. Brophy (Cambridge, MA: Harvard University Press, 2011), 483–500; see also Mark Fathi Massoud, “Ideals and Practices in the Rule of Law,” 41(2) Law & Social Inquiry (2016b): 489–501, p. 494.
[19] Lisbeth Zimmermann, Global Norms with a Local Face: Rule-of-Law Promotion and NormTranslation (Cambridge University Press, 2017), 2.
[20] William Hurst, Ruling Before the Law: The Politics of Legal Regimes in China and Indonesia (Cambridge: Cambridge University Press, 2018).
[21] Frank Munger, “Thailand’s Cause Lawyers and Twenty-First-Century Military Coups: Nation, Identity, and Conflicting Visions of the Rule of Law,” 2(2) Asian Journal of Law and Society (2015): 301–322; see also Massoud (2016b), 493.
[22] Philip Selznick, A Humanist Science: Values and Ideals in Social Inquiry (Stanford, CA: Stanford University Press, 2008); Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964).
[23] Henri Nouwen, The Wounded Healer: Ministry in Contemporary Society (New York: Doubleday, 1979); Wil Hernandez, Henri Nouwen: A Spirituality of Imperfection (New York: Paulist Press, 2006).
[24] On the challenges of implementing international legal reform programs in conflict settings, see David Marshall, ed., The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward (Cambridge, MA: Harvard University Press, 2014); Rachel Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Washington, DC: Carnegie Endowment for International Peace, 2012).
[25] Aid workers and consultants have written numerous reports on integrating what they classify as distinct legal systems. See, for example, United Nations Habitat, “Harmonization of the Legal Systems Resolving Land Disputes in Somaliland and Puntland: Report and
Recommendations,” HS/007/16E (July 2015); Andre Le Sage, Stateless Justice in Somalia: Formal and Informal Rule of Law Initiatives (Geneva, Switzerland: Centre for Humanitarian Dialogue, 2005); Erica Harper, ed., Working with Customary Justice: Post-Conflict and Fragile States (Rome: IDLO-International Development Law Organization, 2011).
[26] These injustices are as real in robust democracies as they are in fragile states. Robert M. Cover, “Violence and the Word,” 95 Yale Law Journal (1986): 1601–1629; Rachel Kleinfeld, A Savage Order: How the World’s Deadliest Countries Can Forge a Path to Security (New York: Pantheon, 2018).
[27] On the case of Sudan, see Mark Fathi Massoud, “How an Islamic State Rejected Islamic Law,”
66 American Journal of Comparative Law (2018a): 579–602. On the case of Israel, see Izhak Englard, “Law and Religion in Israel,” 35(1) American Journal of Comparative Law (1987): 185–208.
[28] Autocrats starting in the 1990s, particularly in Asia, launched the idea of protecting local cultural values in a bid to exempt themselves from considerations of international human rights law, which they criticized for its Western origins. See, for example, Michael D. Barr, “Lee Kwan Yew and the ‘Asian Values’ Debate,” 24(3) Asian Studies Review (2000): 309–334; Yash Ghai, “Asian Perspectives on Human Rights,” 23(3) Hong Kong Law Journal (1993): 342–357.
[29] Deborah Orr, “For Human Rights to Flourish, Religious Rights Have to Come Second,” Guardian, December 27, 2013, https://bit.ly/33RDSzG (accessed January 1, 2021).
[30] Charles M. North, Wafa Hakim Orman, and Carl R. Gwin, “Religion, Corruption, and the Rule of Law,” 45(5) Journal of Money, Credit, and Banking (2013): 757–779.
[31] Timur Kuran, The Long Divergence: How Islamic Law Held Back the Middle East (Princeton, NJ: Princeton University Press, 2010); Jean-Philippe Platteau, Islam Instrumentalized: Religion and Politics in Historical Perspective (Cambridge: Cambridge University Press, 2017).
[32] Aslı Ü. Bâli and Hanna Lerner, eds., Constitution Writing, Religion and Democracy (Cambridge: Cambridge University Press, 2017); Benjamin Schonthal, Tamir Moustafa, Matthew Nelson, and Shylashri Shankar, “Is the Rule of Law an Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom,” 60(8) American Behavioral Scientist (2015): 966–986.
[33] Mohamed Haji Ibrahim Egal, “Somalia: Nomadic Individualism and the Rule of Law,” 67(268) African Affairs (1968): 219–226, p. 219.
[34] Shahab Ahmed, What is Islam? The Importance of Being Islamic (Princeton, NJ: Princeton University Press, 2015); Robert Hefner, ed., Shari‘a Law and Modern Muslim Ethics (Bloomington: Indiana University Press, 2016); Mark Fathi Massoud and Kathleen M. Moore, “Rethinking Shari’a: Voices of Islam in California,” 5(4) Boom: A Journal of California (2015): 94–99. A. Kevin Reinhart, “Islamic Law as Islamic Ethics,” 11(2) Journal of Religious Ethics (1983): 186–203.
[35] John Witte, Jr. and M. Christian Green, eds., Religion and Human Rights: An Introduction (Oxford: Oxford University Press, 2012).
[36] On the relationship between rights and duties in Islamic and international human rights laws, see Mark Fathi Massoud, “Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan,” 45(1) Law & Society Review (2011): 1–32.
[37] Jedidiah J. Kroncke, The Futility of Law and Development: China and the Dangers of Exporting American Law (Oxford: Oxford University Press, 2016).
[38] Winnifred Fallers Sullivan, The Impossibility of Religious Freedom, 2nd ed. (Princeton, NJ: Princeton University Press, 2018); Elizabeth Shakman Hurd, Beyond Religious Freedom: The New Global Politics of Religion (Princeton, NJ: Princeton University Press, 2015).
[39] Interview 125 with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (June 2014).
[40] On these four areas of social and political life in Islam, see Wael B. Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009a).
[41] Interview 32 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[42] Anver Emon, Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law (Oxford: Oxford University Press, 2012).
[43] The four primary methodological areas of inquiry in usul al-fiqh are (1) how to use agreed-upon sources of Islam (Qur’an and Hadith); (2) how to use any disagreed-upon sources; (3) how to study legal rulings; and (4) how to decipher who has the right to make legal rulings (these persons are called mutahideen and muqalideen).
[44] There are many disagreed-upon sources of legislation in Islam. These include the opinions of the Prophet Muhammad’s companions, the rulings of previous religions, the public benefit (musalah mursala), and contemporary judges’ opinions based on their life experiences (istihsan).
[45] Abu Ameenah Bilal Philips, The Evolution of Fiqh (Islamic Law and the Madh-habs) (Riyadh: International Islamic Publishing House, 1990), 12.
[46] Mohammad Hashim Kamali, Shari‘ah Law: An Introduction (London: One world Publications, 2008), 68.
[47] Hallaq (2009a), 27.
[48] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd ed. (Cambridge: Islamic Texts Society, 2005), 131.
[49] Kamali (2008), 5.
[50] Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge University Press, 2009b), 79.
[51] Kamali (2008), 44.
[52] Ibid., 1.
[53] Shaykh Muhammad Al-Khudari Bak Al-Bajuri, The History of the Four Caliphs (Itmam al-Wafa’fi Sirat al-Khulafa) (London: Turath Publishing, 2012), 29.
[54] On the relationship between legal pluralism, legal orders, and legal institutions in Muslimmajority societies, see Ido Shahar, “Legal Pluralism and the Study of Shari‘a Courts,” 15 Islamic Law and Society (2008): 112–141.
[55] Studying what shari‘a does, rather than what shari‘a says, is consistent with calls in socio-legal studies for “new legal realism,” or the study of law and society at close range, using empirical methods. On new legal realism and Islam, see Massoud (2016a).
[56] Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago, IL: University of Chicago Press, 1994).
[57] Lynette J. Chua, The Politics of Love in Myanmar: LGBT Mobilization and Human Rights as a Way of Life (Stanford, CA: Stanford University Press, 2019).
[58] Mark Fathi Massoud, “Legal Poverty and the Rule of Law in Strife-Torn States,” 34(2) Whittier Law Review (2013b): 245–259.
[59] On the spread of anti-Muslim organizations and their influence on mass media and public policy, see Christopher Bail, Terrified: How Anti-Muslim Fringe Organizations Became Mainstream (Princeton, NJ: Princeton University Press, 2015).
[60] Northern Nigerians, for instance, have hearkened back to early Islam to envision social justice when they feel contemporary governments cannot deliver it. Sarah Eltantawi, Shari‘ah on Trial: Northern Nigeria’s Islamic Revolution (Oakland, CA: University of California Press, 2017); Ebenezer Odabare, Pentecostal Republic: Religion and the Struggle for State Power in Nigeria (London: Zed Books, 2018).
[61] Matthew Cavedon, “Men of the Spear and Men of God: Islamism’s Contributions to the New Somali State,” 28 Emory International Law Review (2014): 473–508, p. 476.
[62] Kamali (2008), 23–24.
[63] On the importance of transnational religious ideologies in shaping national security in Muslim majority countries, see Lawrence Rubin, Islam in the Balance: Ideational Threats in Arab Politics (Stanford, CA: Stanford University Press, 2014).
[64] Interview 80 with Gul, aid worker in Nairobi, Kenya (August 2013).
[65] Ibid.
[66] Michael Shank, “Understanding Political Islam in Somalia,” 1(1) Contemporary Islam (2007): 89–103, citing H. Hassan, Intishar al-Islam wa-al-Urubah Fima yali al-Sahra al-Kubra Sharq alQarra al-Ifriqiyyah wa-Gharbiha (Cairo: Matba-at Lujnat al-Bayan al-Arabi, 1957), 127.
[67] Egal (1968), 221.
[68] Shank (2007), citing Christopher Ehret, “The Eastern Horn of Africa, 1000 B.C. to 1400 A.D.: The Historical Roots,” in The Invention of Somalia, ed. Ali Jimale Ahmed (Lawrenceville, NJ: Red Sea Press, 1995), 233–256, p. 254.
[69] Interview 32 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[70] Robrecht Deforche, “Stabilization and Common Identity: Reflections on the Islamic Courts Union and Al-Itihaad,” 13 Bildhaan: An International Journal of Somali Studies (2013): 102–120, p. 104.
[71] On the politics of the clan, see I. M. Lewis, A Modern History of the Somali: Nation and State in the Horn of Africa (London: Boydell and Brewer, 2003). For a critique of the colonial formation of the clan nomenclature, see Lidwien Kapteijns, “I. M. Lewis and Somali Clanship: A Critique,” 11(1) Northeast African Studies (2004): 1–23.
[72] Follow-up interview 93 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (June 2014).
[73] Deforche (2013), 104, citing I. M. Lewis, “Visible and Invisible Differences: The Somali Paradox,” 74 Africa: Journal of the International Africa Institute (2004): 489–451; Mohamed Haji Mukhtar, “Islam in Somali History: Fact and Fiction,” in The Invention of Somalia, ed. Ali Jimale Ahmed (Lawrenceville, NJ: Red Sea Press, 1995), 1–28.
[74] Somalia’s economy improved slightly during its “stateless” years of the 1990s, compared to the period during its civil war of the 1980s. Benjamin Powell, Ryan Ford, and Alex Nowrasteh, “Somalia after State Collapse: Chaos or Improvement?” 67(3–4) Journal of Economic Behavior & Organization (2008): 657–670.
[75] Ken Menkhaus and John Prendergast, “Governance and Economic Survival in Postintervention Somalia,” 172 CSIS Africa Note (May 1995): 1–10.
[76] Peter Woodward, The Horn of Africa: State Politics and International Relations (New York: Tauris Academic Studies, 1996).
[77] A peace conference in Djibouti in 2000 set up Somalia’s Transitional National Government (TNG). In 2004, the TNG was replaced by Somalia’s Transitional Federal Government (TFG), which political leaders set up in Nairobi. The TFG was based in exile in Baidoa, Somalia, due to insecurity in Somalia’s capital, Mogadishu.
[78] Anna Simons, Network of Dissolution: Somalia Undone (Boulder, CO: Westview Press, 1996), cited in Abdurahman M. Abdullahi, “Perspectives on the State Collapse in Somalia,” in Somalia at the Crossroads: Challenges and Perspectives in Reconstituting a Failed State, eds. Abdulahi Osman and Issaka Souaré (London: Adonis & Abbey, 2007a), 40–57, p. 40.
[79] Ahmed Samatar, “The Curse of Allah: Civic Disembowelment and the Collapse of the State in Somalia,” in The Somali Challenge: From Catastrophe to Renewal? ed. Ahmed Samatar (Boulder, CO: Lynne Reinner Publishers, 1994), 129.
[80] Le Sage (2005) adds civil-society and private-sector justice initiatives to these three systems.
[81] Interview 59 with Kalim, former NGO executive director in Hargeisa, Somaliland (July 2013).
[82] Interview 87 with Muuse, retired senior government minister in Mogadishu, Somalia (conducted in Addis Ababa, Ethiopia) (August 2013).
[83] For similar findings on the relationship between religion, humanitarianism, and modernity, see Ann Swidler, “African Affirmations: The Religion of Modernity and the Modernity of Religion,” 28(6) International Sociology (2013): 680–696.
[84] Interview 4 with Adnan, law graduate from Somaliland in London, England (June 2013).
[85] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[86] Though the self-declared Islamic State (ISIS) is a different type of nationalistic enterprise, it operates beyond the boundaries of nation-states recognized under public international law. William McCants, The ISIS Apocalypse: The History, Strategy, and Doomsday Vision of the Islamic State (New York: St. Martin’s Press, 2015).
[87] Noah Salomon, For Love of the Prophet: An Ethnography of Sudan’s Islamic State (Princeton, NJ: Princeton University Press, 2016).
