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In Tunisia, it was very different. They wrestled with including Islamic law in their constitution, like in many post-conflict counties and decided ultimately not to include Islamic law because it was ambiguous. Rather, they moved Islamic law to the realm of consciousness and personal practice, instead of placing it in the hands of the state. While many countries emerging from conflict have found themselves in a greater embrace of Islam, such as the case of Egypt (even if it is more vacillated), Afghanistan, or Iraq after the US invasion; Tunisia went in a different direction. There, the debate was most concerned with the question, “who defines Islam?” In defining Islam, would they be excluding some people from their citizenry? So they decided to remove it from the constitution and leave it in the realm of a person’s consciousness. So you see a different variety of responses depending on the social make-up and experience of a state.
Some countries, like Sudan, for example, had hudud punishments in the formal law, but for a long time they were never enforced. Recently, some of these punishments are now being applied but there seems to be a tension between wanting Islamic law and the social or cultural reality. How can these be reconciled?
The example of Sudan encapsulates the very tension between the politics of Islamic law and the reality of Islamic law. Up until the modern era, Islamic criminal law punishments were rarely ever enforced because the evidentiary burdens were so difficult to overcome – that is, these devastating punishments and high evidentiary burdens were not necessarily intended to be enforced. That classical orientation of Islamic criminal law stands in a very strong contrast with what is happening now, where both state and non-state actors claim to uphold Islamic law by carrying out these punishments, without the various rigors that made Islamic law operate as a rule of law-based system, in other words, a system that was predicated on having a trial, a judge, legal advocacy, and most importantly, rules of evidence that focused on the weight of the evidence, the inevitability and the imputability of reason, the intent to commit a crime. If we look at non-state actors who want to achieve the political specter of law and order, they will often ignore all of these elements, just so they can achieve the victory of saying ‘I’ve stoned someone’ or punished them for theft.
It’s not necessarily the law per se, but the totality of the law that needs to be understood.
In fact there were many admonitions by the prophet and by jurists that says that you will never go directly to the punishment, that you need to try to avoid punishment, in order for the law to be more just, more flexible, and to uphold the rule of law. It also meant that there are a whole series of institutions that need to play their part, society needed to play its part. During the time of the famine in 638, for example, the caliph made unanimous that the punishment for theft could not be passed upon the citizens because society itself was unwilling or unable to meet the needs of its citizens. The state was disabled in its ability to punish in that same respect. This vast mosaic of Islamic law has been truncated and ignored, and ignores the importance of social conditions.
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There is often seen to be a blurring between what is custom, culture, tradition and Islam. This becomes a challenge for states in transition trying to open up a dialogue around democratic governance and the vision for the state. How do we address this?
The primary concern in Islam, early on, was the spread of the religion rather than the establishment of a system of law or to remove or eliminate custom. That meant that Islam is very flexible in places like Africa or Indonesia, where it accorded great deference to customary practices as long as they did not contradict Islam. The question now is where is that dividing line? Where is the dividing line, for example, between female genital mutilation being tolerated as a matter of custom, and giving it the legitimacy of Islam. If you suggest, like some have, that the line drawing in Islam means that there is to be no set of practices beyond the time of the prophet and his companions, what do you do about modern issues such as the use of cell phones, or modern practices or holidays that do not fit in the narrow pantheon of Islamic practices. For example, many Afghans will celebrate the beginning of the spring, which has its origin in ancient Persia.
Some saw this practice as completely consistent with Islam, because there is nothing directly hostile or conflicting between the celebration and Islam; others however, said that because this celebration didn’t exist in the time of the tribes of Arabia and the companions of the prophet, it should be denied. Other practices, like forced marriage, are against the strictures of Islam, but for the sake of social cohesion, for the sake of public interest, have largely been ignored or tolerated.
I think that we have to understand that Islam has always had a long standing and deeply intertwined relationship with customary practices, because the rule in Islam has always been “unless it is expressly prohibited, it is permitted.” On the other hand, we have also entered an age where legal and religious purity has also divided Muslim against Muslim.
Often times the linchpin of this discourse has been accepting customary practices.
In Muslim societies, it can be anything from the rights of marriage, or the role of the tribe, and of course this is indeed the challenge given that you have significant Muslim communities, in 54 countries all with different cultures, different backgrounds and different histories.
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