Islamic Law in Muslim Majority Countries
Dechert LLP, Washington, D.C.
Located in Central Asia at the crossroads between Europe, East Asia, and the Indian subcontinent, Afghanistan has been at the crossroads of civilizations for thousands of years. Urban civilization in the areas included in present day Afghanistan began as early as 3000 to 2000 B.C. Afghanistan's location has been a blessing at times, as evidenced by the flourishing trade that existed during the time of the silk road, as well as a curse, as differing political systems and ideologies in the region have sought to exert their influence in the country, leading to destabilization and conflict.
Islam in Afghanistan
Islam was introduced to the area in 642 A.D. Prior to the introduction of Islam, Buddhism was prevalent and the giant statutes of two Buddhas destroyed by the Taliban in 2001 are remnants of that history. Former Afghan rulers founded the central Islamic Kingdom of India and the Moghul Empire. It was from Afghanistan that Islam found roots in what is currently India and Pakistan.
Today, Afghanistan is a majority Muslim country, with 99% of the population Muslim -- 84% Sunni (primarily following the Hanafi school) and 15% Shiite (primarily following the Imami school). The remaining 1% includes primarily Hindus and Sikhs. A small population of Jews existed in Afghanistan, but most emigrated and left by 1985. Islam is a unifying factor in Afghan society despite the existence of sectarian differences and variations in Qur'anic and legal interpretations.
Afghanistan has strong roots in Sufism (from suf, Arabic for wool; possibly referring to woolen robes worn by early ascetics), a mystical order. The great Sufi orders or tariqa (brotherhoods) were first established in the twelfth century. Sufi practices are found today among both Sunni and Shiite communities in Afghanistan, although it tends to be more widespread among Sunnis. Sufis describe their personal experiences in a vast variety of poetic expression. The poetry of the Sufis is considered one of the most notable of all poetic styles in the world. Universally acclaimed Afghan Sufi poets include Ansari (11th century) and Jami (15th century) of Herat, Sanayi of Ghazni (12th century) , and Rumi of Balkh (13th century), the founder of the order of whirling dervishes.
Role of Islam and Islamic Law in the Afghan State
In order to understand the current role of shariah (Islamic law) in Afghanistan, a historical perspective is needed. The state of Afghanistan as it is known today was founded in 1747 by Ahmad Shah Durrani. His rule extended from Mashad in the west (now in Iran) and Kashmir and Delhi to the east (now in India) and from the Oxus River in the north to the Arabian sea in the south. Ahmad Shah, who ruled Afghanistan until 1773, had absolute power. The courts were in the hands of the ulama (religious scholars), but the death penalty had to be approved by the king or a governor. Ahmad Shah's administration drafted a legal code, although it was not enacted. Although shariah courts existed in urban centers after Ahmad Shah's rule, the primary judicial basis for the society remained in the tribal code of the Pashtunwali (Pashtun code of conduct) until the end of the nineteenth century. Sporadic fatwas (formal legal opinions) were issued. Due to the absence of formal legal mechanisms in most tribal Pashtun areas, the Pashtunwali continues until today to exert an enormous influence on legal and social decisions.
In the 19th century, the expanding British and Russian Empires significantly influenced Afghanistan in what was termed "The Great Game." British concerns over Russian advances in Central Asia culminated in two Anglo-Afghan wars, the first from 1839-42 and the second from 1878-80. Both times, Afghans fought off British colonial rule.
The first systematic use of Islam as an instrument for state-building was introduced by Amir Abdur Rahman (1880-1901) during his drive toward centralization. The "Iron Amir,” as he was known, claimed temporal and spiritual powers, and the only restraint on his rule was the obligation to conform to the rules of Islamic law. He decreed that all laws must comply with Islamic law and thus officially elevated the shariah over customary laws embodied in the Pashtunwali. Islam continued to have an important role in state affairs, but the religious establishment remained essentially non-political, functioning as a moral rather than a political influence. Nevertheless, when the religious leadership considered themselves severely threatened, some religious leaders used Islam to rally groups in opposition to the state. At times, tribal revolts were often lead by ulama, who purported to represent the interests of the people.
A process of secularization began with King Amanullah (1919-1929), who proclaimed a constitution in 1924 that enumerated the prerogatives of the ruler and the rights of the ruled. Amanullah moved to end Afghanistan's traditional isolation in the years following the Third Anglo-Afghan war. He established diplomatic relations with most major countries and, following a 1927 tour of Europe and Turkey, during which he noted the modernization and secularization advanced by Ataturk, he introduced several reforms intended to modernize Afghanistan. Some of these, such as the abolition of the traditional veil for women and the opening of a number of co-educational schools alienated many tribal and religious leaders.
This reform period formed the basis for democratization under Zahir Shah (1933-1973), whose reforms culminated in the promulgation of the 1964 constitution. However, reform efforts were impeded by the country's poverty and illiteracy. Universal education, envisioned by the constitution, was a goal rather than a reality and Afghanistan remained largely illiterate. The introduction of secular schools, in addition to the traditional mosque system, produced two intellectual groups. These groups continue to debate the course Afghanistan should take, including the new constitution and legal system.
In 1973, Muhammad Daud, a cousin of the king, staged a coup and proclaimed a republic. Daud set up a one-party government, a "democracy based on social justice." His constitution, promulgated on February 14, 1977, was intended to give power to the majority--farmers, workers, and youth. Land reforms were to be carried out and cooperatives were to be encouraged. When Marxist followers overthrew Daud in 1978, reformist policies were continued, but became brutal as political executions were used to stifle opposition.
After the Soviet invasion in 1979 and during the resistance period (1979-1989), the dynamic of politicized Islam in Afghanistan was strengthened when mujahideen (freedom fighters) defended the country against the Soviet invaders. Politicized Islam represented a break from past Afghan traditions. The Islamist Movement originated in 1958 among faculties of Kabul University, particularly within the Faculty of Islamic Law which had been formed in 1952, but it was not able to command enough support to gain political power until after the Soviet defeat. It was from this base of professors and students that many of the mujahideen leaders emerged.
Although the mujahideen were ultimately successful in driving out Soviet forces, they were not able to construct a political alternative to govern Afghanistan after their victory. In 1992, the Islamic State of Afghanistan came into being and represented the first time that religious specialists officially exercised state power. Unfortunately, because of rivalries between mujahideen groups, a civil war ensued, further destabilizing the country from 1992-1994.
It was during this anarchic period that initial support for the Taliban (students of Islam) was attained, as the Taliban promised to bring about greater security and an end to the civil conflict. The majority of the Taliban were comprised of young Afghan refugees trained in Pakistani madrassas (religious schools), especially those run by the Jamiat-e Ulema-e Islam Pakistan, the conservative Pakistani political religious party. After their emergence, the Taliban captured about two-thirds of the country and established a theocratic regime. For the first time in its history, much of Afghanistan was ruled as a pure theocracy. Mullah Muhammad Omar proclaimed himself "Commander of the Faithful," and a government was established in which the leaders were members of the ulama.
The Taliban's harsh interpretation of Islam was largely based upon Wahhabism that emanated from Saudi Arabia, a form of Islam that was foreign to Afghanistan. The Taliban were supported by foreign elements and as institutions and the economy crumbled, the country became increasingly weakened. As we all know too well after the horrific events of 9/11, its weakness allowed it to become a haven for Islamic extremists from around the world. Throughout this time, the Northern Alliance (opposition forces) fought the Taliban, later with U.S. intervention in October 2001 until the signing of the Bonn peace agreement in December 2001.
The Role of Islamic Law in Afghanistan's Legal System
Thus, ever since the modern state of Afghanistan was formed, it has been ruled both by the sword and by Islamic law. As a result, Afghanistan's legal system is a mixed one that consists of Islamic law, state enacted legislation, and customary and tribal laws. In this mix, Islamic law has played an important role, although the form and extent of its role has varied. Islamic law has been traditionally administered by ulama and has to some extent been incorporated as part of the law of the state.
The varying role of Islamic law is reflected in the constitutions that have been promulgated by successor regimes in the country. The 1931 Constitution made Hanafi jurisprudence the state religion, while the 1964 Constitution simply prescribed that the state should conduct its religious ritual according to the Hanafi school. The 1977 Constitution declared Islam the religion of Afghanistan, but did not require that the state ritual be Hanafi.
State enacted legislation during the 1960s and 1970s increased in many different areas. The Penal Code (1976) and Civil Code (1977), covering the entire field of social justice, represented major attempts to strengthen secular law. Under the 1964 Constitution, courts were enjoined to consider cases first according to secular law, resorting to shariah only in areas where secular law did not exist. Thus, Islamic law was meant to fill “voids” when interpreting and applying state-mandated legislation, but was not the sole source of legislation.
As of the writing of this outline, the new draft constitution for Afghanistan contains a greater official role for Islam and Islamic law than any other past Afghan constitution. Part of the Preamble states “With firm faith in God Almighty and relying on His mercy, and Believing in the Sacred religion of Islam.” Article One states that “Afghanistan is an Islamic Republic, independent, unitary and indivisible state.” Article Two provides that “The religion of Afghanistan is the sacred religion of Islam. Followers of other religions are free to perform their religious ceremonies within the limits of the provisions of law.” Article Three states, “In Afghanistan, no law can be contrary to the sacred religion of Islam and the values of this Constitution.” Further articles provide that the state shall abide by the UN Charter and international treaties and conventions which Afghanistan has signed, but how this will be interpreted is an open question. Islam has been given a wider role in education as Article 17 requires that the state adopt measures to promote education, including the development of religious education, organizing and improving the conditions of mosques, madrassas and religious centers.
As Afghanistan enters a new stage in its political and legal development, Islamic law and its interpretation will become even more important due to the numerous provisions in the new constitution recognizing and requiring the implementation of Islamic law. Deciding what is contrary to Islam will no doubt lead to great tension and debate and it will be the ability of the new structure of government and process of decision-making that will determine the success or failure of the new constitution.
Application of Islamic Law in Afghanistan
Given the importance of Islamic law in Afghanistan, there are several layers of analysis in determining its past and potential future application in the country. These layers are all interrelated and addressing these factors will be crucial as judicial reform measures take place.
First, Afghanistan's mixed legal system has been characterized by many non-state and informal dispute resolution mechanisms -- namely jirgas (councils) and private mediators that have decided disputes brought before them. Most legal disputes are thus decided outside of the formal legal system.
Second, a dichotomy has always existed in the formal and informal legal system between application of customary law and Islamic law, with the latter increasingly relegated to the sphere of family and criminal law.
Third, even though statutory laws exist, in practice, judges generally apply Islamic law and not statutory laws. Even before the Soviet invasion of 1979, Afghanistan's framework of constitutional and statutory laws played only a minor role in the administration of justice. A Law of the Jurisdiction and Organization of the Courts was passed in 1968 and established a structure for the formal court system. It established the general Courts, which include the Supreme Court, the Court of Cassation (an administrative court of appeal), the High Central Court of Appeal, provincial courts, and primary courts. It also created specialized courts that included juvenile courts, labor courts and other specialized courts established by the Supreme Court when needed. Outside of urban courts or specialized courts that had access to relevant legal material, in practice and legal reality, Afghanistan's courts have been applying Islamic and customary laws.
Fourth, the lack of institutions and capacity has limited the application of most written laws, whether based on secular or Islamic law leading to a wide gap between laws and legal reality.
Fifth, due to the past 23 years of conflict and changing regimes, it is difficult today to ascertain even which of the past laws enacted apply.
Sixth, legal institutions, if they exist, face a host of problems. Courts are understaffed and ill equipped. Neither judges, lawyers nor educational institutions have adequate access to applicable statutes and legal materials, most of which were destroyed during the past 23 years of conflict. Basically, many judges and mullahs issuing legal decisions or verdicts do not have access to or are not even aware of Afghanistan's secular laws.
Seventh, there are no clear guidelines on the qualifications or selection procedure for lawyers and judges. Although a transitional government has assumed leadership of ministries, the Supreme Court Justice and most of the 4,700 judges appointment during the Taliban time are still in place.
Eighth, lack of resources, materials and education have lead to legal decisions being issued purportedly based upon Islamic law, but in reality, based upon cultural practices or Pashtunwali.
Ninth, there has been uneven application of secular and Islamic law throughout the country, with an urban-rural divide. The inability of successive governments to implement statutory laws in a uniform manner across the country reflects not only underdevelopment, but political constraints since regional leaders are wary of giving up control to state institutions.
Tenth, a new dynamic of Islamic groups or organizations (or those who call themselves as such) becoming politicized due to the lack of political plurality or as a result of the quest for power and legitimacy in times of instability has lead to a greater importance for the role of Islamic law in the legal system. Most of the parties vying for power in the June 2004 elections identify themselves as Islamic parties.
Faith is an important part of most Afghan's lives and when questioned by the Constitutional Review Commission this fall, most agreed that Islam should have a role in the new legal system. However, most citizens lack the understanding to determine what that means and how it should be implemented.
Due to Afghanistan's recent history and the Soviet invasion, which lead to a strengthening of religious parties, there is little doubt that the current Afghan government will not be able to survive on a purely secular, non-Islamic basis. This is even more true due to the loss of millions of the country's population and the influx of a mainly conservative rural population into urban areas. With this movement, conservative values have been brought into areas that had formerly been more open to change. The balance between religion and the state and how Islamic law is interpreted will be key.
When people seek to survive in harsh environments, they many times cling to the only thing they have left -- their faith. Those individuals who endured hardship in Afghanistan will likely give Islam and Islamic law a much greater role in the legal system and governance than existed in the past. The only effective way to thus shape legal reforms in Afghanistan is to address it with reinterpretations of Islamic law itself, not by ignoring its presence.
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- With about 200 million Muslims, Indonesia is largest Muslim country in the world.
- Though not an “Islamic state,” the state enforces Islamic doctrines of marriage, inheritance, and charitable foundations through separate court system.
- Repeated efforts to establish constitutional requirement of “state enforcement of shariah” have failed for lack of support.
- Islam arrived in Southeast Asia in 13th – 17th centuries.
- Character of SEAsian Islam shaped by, i.a., pre-Islamic history and local social cultural values. Much of region had long history of Indian influence.
- The character of SEAsian Islam also influenced by configuration of political power.
- There is also significant diversity within the region among Indonesian Muslims.
- In a predominantly agricultural economy, SEAsian women have generally enjoyed higher social and legal status than other parts of Muslim world. Most common kinship structure is bilateral. Region also includes patrilineal groups, and the world's largest matrilineal society.
- Indonesian interpretations of Islamic Law
- Local interpretations of Islamic Law shaped by awareness of difference between Southeast Asia and Arabia.
- Two illustrations of awareness of difference among Southeast Asian Muslims. Both illustrations from Minangkabau in North Sumatra. Minangkabau reckon descent and inheritance based on female blood lines. Also among the most devout Muslims in Indonesia.
- First illustration unselfconscious childhood memoir about growing up in a Minangkabau village. Village Childhood by Muhamad Radjab.
- Tells of studying the rules about how to perform the ablutions before praying.
- Describes reaction to learning rule that when praying in the desert with no water to wash, it is permissible to use sand. Questions relevance of rule in tropical Minangkabau, where water is plentiful.
- Second illustration from argument by prominent scholar, Sayuti Thalib, for a more contextual approach to interpreting original sources of the law.
- Thalib argued that the inheritance rules of orthodox Islamic doctrine were shaped by patrilineal Arab society in which they developed. Used matrilineal Minangkabau to illustrate how categories of social perception shape interpretation.
- For Minangkabau the word for female is simply “child,” but male children are referred to as “banana children.” The term banana child has its source in the way bananas reproduce. The fruit of a banana tree does not contain seeds, and a new banana tree does not grow from the fruit of a mature tree. The new tree grows from a root that is off to the side of the parent tree. The term “banana child” refers to the fact that male children are not regarded as direct descendants of the parent stock, and do not belong to the parents' clan. A female child, however, is simply a “child,” indicating that she is the offspring of her parents, and part of the clan.
- The Koran grants certain inheritance rights to “children.” Within Arab society, in which descent is reckoned through males and the tribe is composed of all male relatives related to a common ancestor through male blood lines, male children and children related through males were regarded as simply “children.” It is understandable, therefore, that the term “child” in the Koran is understood to refer to males, and that it is males alone who are entitled to the inheritance rights of children. If the Koran had been revealed to the Minangkabau, Thalib argues, they would have interpreted it based on the categories of their social world, and females and relatives related through females would have been the primary heirs.
- Positive law less progressive than debate
- It has long been argued that law should reflect Indonesian values, but progress toward development of Indonesian school of Islamic doctrine has been slow.
- For example, in mid-eighties inheritance rules were codified. Proposal to equalize the inheritance rights of male and female heirs opposed by Islamic establishment because of conflict with apparently unambiguous language in the Koran.
- When completed and implemented in early 1990s, code preserved rule that the share of a son is twice that of a daughter.
- There is movement, albeit slow and tentative, toward a more gender neutral inheritance law.
- One potentially significant Supreme Court decision from eastern Indonesian island of Lombok in 1994 indicates the possible direction of future change.
- The case, H. Nur Said, reduced to conflict between the deceased's daughter and his brother.
- Sunni inheritance doctrine
- Solution of most inheritance questions under Islamic law requires determination of rights of two categories of heirs.
- First, the Koran designates certain relatives as entitled to a fixed fractional share of the deceased's estate.
- The group of Koranic sharers are mostly those who were not entitled to inherit under pre-Islamic Arab customary law.
- Second, after the “Koranic sharers” have received their shares, the remainder of the estate goes to the nearest male relative related through male blood lines.
- The nearest male agnate, who is a residuary heir under Islamic law, was the sole heir under pre-Islamic tribal law.
- Lower courts in H. Nur Said decided the case in line with orthodox doctrine.
- Applicable Koranic provision makes the inheritance rights of collateral relatives dependent on absence of “child.” Although Arabic word commonly refers to both male and female children, orthodox doctrine grants collateral relatives inheritance rights only in the absence of a son.
- Thus, in the absence of any son, a single daughter receives one-half of the estate. Deceased's full brother, as nearest male agnate, takes remainder.
- Indonesian Supreme Court in H. Nur Said gave the entire estate to the daughter on the ground that collaterals come into inheritance only in the absence of any child, son or daughter. Only reason given for decision was citation to view of companion of Prophet that the Koranic term embraces both male and female children.
- But the Court's decision to adopt this minority position clearly influenced by its conception of social justice.
- As elsewhere in Muslim world, there is a lively debate among Indonesian Muslims regarding the future development of Islamic law.
- While extremist elements have recently attracted attention of outside world, hard line Muslim political parties fared badly in 1999 elections, and are expected to do little better in 2004.
- Efforts around the country to implement strict social codes have more to do with the distribution of political power and assertion of local identity against centralist control than Islamic doctrine.
Daniel S. Lev, Islamic Courts in Indonesia: A Study in the Political Bases of Legal Institutions (1972)
John R. Bowen, Islam, Law and Equality in Indonesia: An Anthropology of Public Reasoning (2003)
3. Legal Theory in Post-Colonial Egypt
Georgetown University Law School
My paper explores the development of legal theory in Egypt after the promulgation of the Egyptian civil code of 1949. The paper argues that Sanhuri's attempt to incorporate the concerns of the two projects of critical theory, that were brewing at the time he set out to draft his code, namely, Islamic critical theory, with its concern with identity, and French critical theory with its concern with distribution has essentially failed. The first part of his project failed because Sanhuri sought in the incorporation of the insights of French critical theory to liberate Egypt from its historic dependence on mainstream French jurisprudence and to trigger an autonomous Egyptian jurisprudence that has its roots in critical theory. This never seems to have happened as post World War 2 Egyptian jurists continue to write as distant participants in a mainstream debate on law taking place in France. It seems to also have failed because the incorporation in the code of the tools of sociological jurisprudence, as French critical theory had advocated, to advance progressive legislation has fallen victim to the surviving conceptual structure of mainstream jurisprudence which seems to have undermined the progressive bent of these devices. The second part of the Sanhuri project failed because Sanhuri's claim that his code was Islamic because it was not un-Islamic remains disputed among those who see themselves as modernizers of Islamic law. For the latter, for a law to be Islamic it has to be more positivistically so by being grounded in either sources or jurisprudence that are identifiably Islamic. These modernizers continue authoring works of legal theory that continues, or builds upon, or comes up with variations of, the Abdu-Rida critique of Islamic jurisprudence.
In a nutshell, the works of theory in contemporary Egypt today that exist outside the regular commentary on the Code consist of two competing camps that write about Islamic law. The first, see themselves as the progeny of Sanhuri and write on Islamic law to argue for the legitimacy of the contemporary Egyptian legal system by continuing Sanhuri's argument that what is not un-Islamic is Islamic. The second writes to argue that the contemporary legal system is un-Islamic and offers reconstructive projects on how to turn it into an Islamic one.