Responsibility in Crisis: Knowledge Politics and Global Publics

Sharí'ah and Colonial Advocacy

We may bring these insights of open and free inquiry to bear on the contemporary religious debate on the Muslim response to the secular West. In spite of the slogans and rhetoric, the debate has roots in a broad and venerable intellectual tradition, as the example of the Sharí'ah debate shows. The debate is concerned with an ongoing historical challenge about what Sir Muhammad Iqbal called the "reconstruction of religious thought." [7] Using Nigeria as a case study, we should pay close attention to the critical Islamic tradition as a subtle feature below and behind the turbulent polemics of the moment, a scrutiny that should resonate with the University's mandate of public scrutiny.

Sharí'ah penal code is being promoted as the constitutional right ofPage  207 Nigerian Muslims, including the right of establishing an Islamic state and abrogating the secular constitution regarded as incompatible with the Sharí'ah. Fundamentalists oppose secularization, or so they claim, and the Western powers that spread it. Instead, they back Sharí'ah, understood here as the divine law and its accompanying tradition of jurisprudence and legal scholarship, known as fiqh. Anti-secular fundamentalism tries to ground itself in orthodox religious sources, tracking the adopted course of political change with the help of rules of guidance and precedent available to Muslims. While it is true that such opposition feeds anti-Western radical sentiment, it is not always the case that it leads to violence, though sometimes it does, admittedly.

Sharí'ah civil law is in the main a routine and conventional quotidian code, concerned primarily with ritual laws, and with guidance, encouragement, reconciliation, and assurance, and widely observed as such in the Muslim world. Colonial rule, for instance, made the decision to engage Islam's intellectual tradition by concluding that nowhere is that intellectual tradition better represented than in Islamic legal science. One such colonial assessment described it as "a vast science [representing] the genius of the same people which gave arithmetic, algebra, trigonometry, astronomy, optics, chemistry and medicine to the Western world, and generally stood at the cradle of modern science." It is in legal scholarship that the genius of Islam "has exhibited itself in all its power and exactitude." [8]

Sharí'ah was administered in Islamic Qádí courts headed by trained Muslim magistrates. In 1956, a Muslim Court of Appeal was set up in Kaduna, the then northern capital, later upgraded to have jurisdiction in Sharí'ah appelate cases. Law manuals were translated from Arabic and placed in the hands of justices; schools and institutes were founded by the government to train Muslim officials; students were recruited to enroll in these places of higher learning; tribunals were set up to handle Muslim issues; Islamic appellate procedures were instituted; and budgets created to underwrite the costs of implementing the Sharí'ah code. What emerged from the synthesis of classical Islamic law and the customs and exigencies of Muslim African societies under Western colonial rule represents an important venture in comparative law. With a possible few exceptions, there is little earlier evidence of such hybrid legal work being carried out anywhere in the modern Muslim world. [9]

The motivation for such legal work was the colonial government'sPage  208 interest in investing in the local legitimacy and stability of alien suzerainty over Muslim populations, looking to the ink-pot rather than to the gun for long-term acceptance. In the process, Muslims were trained and equipped to run a modern state, the sort of political apprenticeship administrators were unwilling to extend to Christian subjects except as trustees of the secular state. [10] This policy disparity would have an important bearing on the divergent attitudes of Muslims and Christians towards secularism.

The colonial authorities were, notwithstanding, opposed to Sharí'ah as penal law because of their desire to preserve the distinction between criminal and civil law, with the state as the sole repository of criminal justice. [11] Officials desired to maintain uniformity in the administration of justice throughout the colonial territories, and, accordingly, restricted Sharí'ah to the status of customary law, leaving the state free to design and enforce the criminal code. The state legislated and levied taxes; customary law, including Sharí'ah personal law, filled the permitted gaps. A principle of great importance was involved in this arrangement of the British willing to divide state authority between them and their Muslim subjects. Sharí'ah law intervened, in effect, to prevent state monopoly of power, while at the same time accommodating itself to an adjustment of the normative boundaries of Islamic jurisprudence. Colonial directives and African customary law combined with Sharí'ah stipulations to broaden the scope of Muslim civil society.

This modus vivendi created an identity of interest between administrators and Muslim officials, and allowed the Muslim objection to Western infidel power to be modified in favor of accommodation. In appreciation, colonial officials embraced their Muslim protégés as partners and future heirs, turning a Nelson's eye to peculiar domestic practices like slavery and polygamy.