The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law

Citation

An-Na'im, A. A. (2010). The compatibility dialectic: Mediating the legitimate coexistence of Islamic law and state law. The Modern Law Review, 73(1), 1–29. Free author's version (University of Pretoria repository): https://repository.up.ac.za/handle/2263/16112

Chapter Summary

Context and Argument

This is a long journal article, not a book. It is the text of the 38th Chorley Lecture, given at the London School of Economics on 10 June 2009 and printed in the Modern Law Review. An-Na'im, a Sudanese-born Muslim human rights advocate and professor of law at Emory University, says at the outset that the question is not merely academic for him: it arises from Sudan's experience, beginning in 1983, of enforcing Islamic law as state law, and from the aspirations of Muslims in Europe and North America to reconcile their faith with citizenship.

The thesis is that Islamic law is not now and cannot be the state law of any country, whatever the proportion of Muslims in the population. A religious norm is binding only when a believer follows it voluntarily, so coercive enforcement by the state converts it into secular state law. This does not make Islamic law irrelevant to public life. Its principles may enter the debate about legislation, provided they are argued in terms of "civic reason" and not as assertions of religious authority. The author calls the resulting relationship, of difference in kind and of possible mutual influence, a "dialectic of compatibility and incompatibility".

Introduction

The introduction states the argument in five points: the need to differentiate Islamic law in theory and separate it from state law in practice; the mediation of compatibility and incompatibility; the focus on the modern territorial state as a globally applicable form; the claim that the analysis holds whether Muslims are a majority or a minority; and the point that principles of Islamic law can be incorporated into state law only as secular law and through civic reason. It cites the codifications of the Egyptian jurist Al-Sanhouri as an illustration. It also announces the plan of the lecture and a call to teach Islamic law as part of comparative legal education.

The Nature and Development of Islamic Law

The section sketches how Islamic law developed from the Quran and Sunna through the schools of jurisprudence and the method known as usul al-fiqh. It argues that Islamic law is a religious system based on human interpretation, in which no person or institution can decide the rule for all believers. For Sunni Muslims, and for most Shia, a principle becomes Islamic law only by what the author calls inter-generational consensus among believers. Hence no legislature can enact a principle of Islamic law, and a majority vote has no religious validity. The author reads the demand for an "Islamic state" as a misguided bid for post-colonial self-determination.

The State and Law in Global Perspectives

The first part, on the territorial "nation" state, describes the modern state as a centralised, bureaucratic order with a territorial basis, claimed sovereignty and a monopoly on the legitimate use of force, spread from Europe through colonialism and international law. The second part, on law and state law, draws on Twining, Santos, Tamanaha, Hart and others to place state law among normative systems. It follows the historical rise of state law over the plural legal orders of the medieval period, notes how globalisation and private ordering now challenge it, and argues that the notion of state law remains necessary for the lecture's purpose.

Failure to Take Islamic Law Seriously

This section proposes taking Islamic law seriously through comparative legal study and public debate rather than state enforcement. In Muslim-majority countries, it argues, majority rule cannot override constitutional safeguards, and it traces the distorted enactment of Islamic law back to colonial personal-law arrangements, the Ottoman Majalla, Al-Sanhouri's codes and Sudan's 1983 decrees. For Muslim minorities in Western Europe and North America it describes a "mirage" of Islamic law: the courts apply it, if at all, as foreign law or arbitration under state rules. Examples include German cases on slaughter and headscarves, Islamic finance, United States cases on arbitration and mahr, and the debates over Sharia arbitration in England and Ontario. The author opposes separate personal-law systems for minorities.

Concluding Remarks: Engaged Citizenship through Civic Reason

The conclusion sets out the dialectic in three points. State law must protect religious freedom and keep the state neutral. Islamic law's role is to sustain that through internal debate within religious communities. And principles of Islamic law may still be enacted through civic reason, within constitutionalism and equal citizenship, while voluntary private mediation remains possible under the state's supervision.

Key Concepts

Introduction and the Nature of Islamic Law

• Civic reason: justifying public policy by reasons that citizens in general can accept or reject, without appealing to categorical religious mandate, and in line with constitutional and human rights standards.
• Dialectic of compatibility and incompatibility: the two normative systems differ in kind, yet can interact because they share methods and some substantive content.
• Inter-generational consensus: the process by which a principle becomes Islamic law for a community of believers, which explains why it cannot be legislated.

The State, State Law and the Cases

• Territorial state: the centralised, sovereign, force-monopolising form of the modern state.
• State law: law created and enforced by the state, which is secular even when it incorporates religious content.
• Mirage of Islamic law for minorities: the claim that when courts apply Islamic rules, they apply state law.

Critical Analysis

Strengths

• A clear and original thesis. The lecture states its argument early in a series of numbered points and then builds it section by section, so readers always know where they are in the argument.
• Insider perspective stated openly. The author declares his position as a believing Muslim and a human rights advocate, and says that he does not defend secularism as a philosophy of life. This lets the reader assess the argument for what it is.
• Useful range of evidence. The lecture draws on legal theory, Islamic jurisprudence and concrete cases from Germany, the United Kingdom, the United States and Canada. It works as a short course in how courts handle religious law.
• Connected to general jurisprudence. It uses Hart on law and morality and global and pluralist accounts of law, so it can be read with core jurisprudence texts.

Limitations

• A normative position, not a neutral survey. Many of the examples are chosen to support the thesis, and the lecture does not discuss at length scholars who defend a stronger place for Islamic law in state law. Read alongside other views.
• Broad generalisations. The account of Islamic legal development and of Muslim opinion is compressed into a few pages, and the discussion of the Western cases is a selective sampling.
• Practical detail is limited. The lecture does not say how civic reason would operate institutionally, and the author himself describes the practical test as one that remains to be tried.
• Dated cases. Examples come from the period up to 2009.

Where It Fits in the Course

Within the jurisprudence course, this lecture applies theory to a contested legal-political question. Simmonds's Central Issues in Jurisprudence and Wacks's Philosophy of Law: A Very Short Introduction give the background in theories of what law is and how it relates to morality, which the lecture relies on, particularly Hart's discussion. Lacey's biography of Hart gives context for that tradition. The titles on animal rights and Fuller's The Case of the Speluncean Explorers deal with different problems.

It is best read after a general introduction to jurisprudence. Its closest companions are readings in legal pluralism and comparative law.

How to Use This Book

The lecture is addressed to readers in law, politics and religious studies. No knowledge of Islamic law is assumed, though basic familiarity with ideas such as sovereignty and the rule of law helps.

A practical plan:

• Read the abstract and the Introduction first: they contain the whole argument in a compact form.
• Then follow the sequence: Islamic law, then the state, then the interaction. The section on the state can be read quickly by readers who know political theory.
• Focus on the final two sections for the case discussion and the conclusion.
• Test the argument: after reading, write out what counts as "civic reason", and consider whether you can apply it to a current legislative controversy of your own choice. Compare An-Na'im's view with a rival position.
• Follow the footnotes to Islam and the Secular State (2008) for the longer argument.

Edition and Sources

This guide covers the author's accepted version of the article as made openly available by the University of Pretoria repository (UPSpace, handle 2263/16112). The published version appeared in the Modern Law Review, volume 73, issue 1, pages 1–29. This guide covers the whole lecture: the abstract, the introduction, the three main sections and the concluding remarks.