Shari‘a, the Rule of Law, and the Other

A video of Professor Emon’s remarks at the conference can  be seen here:

Two of the more challenging presentations at last fall’s Spectacle of Toleration conference focused our attention on the MENA region (Middle East/North Africa) and demanded that we think more deeply about what we mean by toleration. One of these was Steven Leonard Jacobs’ “Women at the Western (Wailing) Wall,”  the subject of a recent blog post. The other was Anver M. Emon’s “Shari‘a and the Rule of Law.”

Emon, Professor, Faculty of Law, University of Toronto, is an internationally recognized scholar of Islamic law; he got our attention with his opening words:

In…the fields of legal theory and law and development, the phrase “Rule of Law” commands considerable attention and respect.… [I]ronically, there is little consensus on what Rule of Law actually means or requires.… The scholarship on Islamic law, however, does not seem particularly attuned to the idea of Rule of Law.

Emon went on to deconstruct two inextricably linked issue areas: the various ways Shari‘a-talk operates “in different ‘social imaginaries’”; and “what it would mean to work through the Islamic tradition as part of a public ethics in modern Muslim majority societies.” By social imaginaries, Emon means “the background values that we take for granted, are always with us, and inform how our world either is or should be ordered”; public ethics has to do with “the ordering of our society.” So, he explains, “if social imaginary gives us the values that are always already there, those values help us think about how our world (our public) ought to be ordered.”

Emon observes that even prior to the Arab Spring “Shari‘a-talk has been with us for a long time,” not just in the Muslim world, but in Europe, Canada, and the United States, as well. “In each context,” Emon tells us, “what Shari‘a signifies depends on the underlying norms that animate a public ethics.” Emon cites several examples, only two of which we can explore here, one from the United States, one from a Muslim society in transition.

Over a two-week period in January 2011, nearly identical bills banning Shari‘a were introduced in nearly a dozen American state legislatures; other states soon followed and some became law. Republican Party success in the 2010 election season partially explains this surge, but another 2010 event, the release by the Center for Security Policy of a report entitled, Shariah: The Threat to America, contributed as well. The security experts who authored the report, Emon comments, view “certain aspects of the historical tradition [of Shari‘a] through a doomsday lens of American security policy.” Their aim, they wrote, “was to apply official US threat assessment doctrine to the Shari‘a.… [They concluded that] conformance to shariah in America constitutes as great a threat as any enemy the nation has ever confronted.” In another passage they state that “7th Century impulses, enshrined in shariah, have reemerged as the most critical existential threat to constitutional governance and the freedom-loving, reason-driven principles that undergird Western civilization.”[emphasis added] The original draft bill of a Tennessee statute expressed it this way: “The knowing adherence to sharia…is prima facie evidence of an act in support of the overthrow of the United States government…by the likely use of imminent criminal violence and terrorism with the aim of imposing sharia on the people of this state.” So, not al- Qaeda, not the Taliban, not Iran, but, as Emon puts it, “our Muslim neighbors who adhere to Shari‘a” comprise an existential threat.

What accounts for this intense reaction to the very idea of Shari‘a? The clue, Emon suggests, is the fact that most of the bills also bracketed Shari‘a law with foreign law and international law more generally, along with suspect institutions of global reach and significance: the UN, European Union, IMF, or World Bank. The bills “all seek to prevent the onset of ‘other’ legal traditions from threatening the ongoing existence of the American spirit as found in its legal tradition.” The Oklahoma statute was called the “Save Our State Amendment.” While the sponsors of these laws often admitted “that fear of Shari‘a is at the heart of the matter,” fear of Shari‘a serves as a proxy for apprehensiveness over “the wellbeing and vibrancy of American democracy and popular sovereignty.”

Emon cites Paul Kahn of Yale Law School, who, in his recent book Political Theology, observes that “Americans have a problem imagining international law: if law is an expression of popular sovereignty, how can a system of norms that has no source in that sovereign constitute law?” For the legislators behind the bills in the various states, Emon explains, “to introduce international law into American courts betrays the popular, representative, democratic American enterprise of governance.… [A]ny foreign influence on American institutions and law is tantamount to an impurity that threatens to contaminate the foundations of the state.… When juxtaposed with international law, Shari‘a appears as simply a more extreme case of that threat, and to ban Shari‘a and international law in a legislative enactment is to use the rituals of domestic law to exorcise the spirit of the nation.”

In the MENA, however, Shari‘a-talk is interpreted in a “social imaginary” that is “fundamentally different”. And while, in the MENA, “what Shari‘a means and how it fits into the larger political and legal context” are contested, “the language used in [those] contests …takes for granted the relevance of Islam and Islamic law as traditions of value…. ” That said, while “the relevance of Islamic ideas [is] obvious, they are perhaps less taken for granted given the relatively recent history of colonialism.”

One promising example of how this can be worked through is found in the work of the Islamic feminist organization Musawah. The group was founded in Malaysia but its approach was inspired by the process by which the Moroccan government revised its Islamic family law code in 2004. That reform demonstrated that scholarship and activism could play a positive role if it worked from within the social imaginary. Musawah’s “signature distinction from other women’s equality groups is its unabashed and unflinching engagement with the Islamic tradition.” Previously, feminism had been tainted by its association with the colonialism, rendering it likely to be rejected in much of the Muslim world. The Musawah model, acknowledging Shari‘a as a resource, builds outward “from the Islamic legal tradition toward a tradition of gender equality.”On the other hand, Emon adds, this approach can provoke resistance of a different kind, since it challenges the prevailing orthodox hegemony over the interpretation of Islam.

Emon tells us that “Shari‘a as Rule of Law is an analytic tool that begs important questions about the nature of law, its relationship to governance, and the conditions that contribute to or undermine a law’s intelligibility, legitimacy, and authority.” He showcases this tool, using the example of the dhimmi rules, which govern the rights and standing of non-Muslims living in an Islamic country.  Centuries ago, the rules were attempts to resolve issues arising from the need to govern a demographically diverse polity. Now they’re addressing a different question, how to deal with demographic diversity and a nearly as diverse congeries of legal systems.

Emon wryly notes, “law…and legal outcomes reflect a series of competing interests that are often resolved on highly pragmatic grounds.… Perhaps, just as pre-modern jurists did, contemporaries in the MENA will posit very different and divergent positions. To think through the Islamic legal tradition in this way not only reflects the already existing repository of ideas and values in the region, but puts them into dialogue with other ideas and values that new regimes have inherited as constitutive of their state’s Rule of Law claim space.”

Toleration based on indifference is a cinch—the greater the psychic distance, the better. But the kind of accommodation Emon is talking about depends upon a kind of engagement and even urgency that make psychic distance hard to attain. I think Emon is arguing that it can be made easier by being entered into mindfully—and with the recognition that accommodation of some kind is the goal, not a compromise.

It cannot and, I suppose, will not ever be easy, but the alternatives are not much fun either. Law is, after all, one of the main instrumentalities by which we contrive to live together, however different from each other we are and however many forms those differences may take. Our traditions, including our legal traditions, shape not just our ideas and our perceptions but what we identify as problems and how we approach those problems. Americans like to think in terms of solving problems but most problems are not solved so much as managed. The arrangements by which manage them make all the difference. The more those arrangements are informed by understanding of the other, the more sustainable they are likely to be. By highlighting this issue in law, which, for me, stands in for the issue of toleration more broadly, Anver Emon has done us a great service.




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About the Author
Ken Yellis coined the term Toleration Studies. He is Principal of Project Development Services, based in Newport, RI. He has been deeply involved in The Spectacle of Toleration project and helped plan the Conference held in Newport and Providence in Fall 2013.

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