Sharia Law vs. Secularism Dual Legal System?

Sharia vs. Secularism

The issue of sharia law versus secular law gained new scrutiny in 2011 in the wake of uprisings in several Arab countries, such as Libya, Tunisia, and Egypt, which ousted pro-Western autocrats and helped Islamist political parties gain prominence. A 2010 Pew pollconducted in seven countries including Egypt found strong support for Islam in politics and for harsh punishments for crimes such as theft, adultery, and conversion away from Islam. At the same time, a majority of those polled in every country except Pakistan believed democracy is the best form of governance. Whether democracy and Islam can coexist is a topic of heated debate. Some Islamists argue democracy is a purely Western concept imposed on Muslim countries. Others feel Islam necessitates a democratic system and that democracy has a basis in the Quran since "mutual consultation" among the people is commended (42:38 Quran). John L. Esposito and John O. Voll explain the debate in a 2001 article in the journal Humanities. 

Noah Feldman, a former CFR adjunct senior fellow, wrote in a 2008 New York Times Magazine article that the full incorporation of Islamic law is viewed as creating "a path to just and legitimate government in much of the Muslim world." It places duplicitous rulers alongside their constituents under the rule of God. "For many Muslims today, living in corrupt autocracies, the call for [sharia] is not a call for sexism, obscurantism or savage punishment but for an Islamic version of what the West considers its most prized principle of political justice: the rule of law," Feldman argues.

On the other hand, some Muslim scholars say that secular government is the best way to observe sharia. "Enforcing a [sharia] through coercive power of the state negates its religious nature, because Muslims would be observing the law of the state and not freely performing their religious obligation as Muslims," says Abdullahi Ahmed An-Na'im, a professor of law at Emory University and author of a book on the future of sharia. Opinions on the best balance of Islamic law and secular law vary, but sharia has been incorporated into political systems in three general ways:

Dual Legal System. Many majority Muslim countries have a dual system in which the government is secular but Muslims can choose to bring familial and financial disputes to sharia courts. The exact jurisdiction of these courts varies from country to country, but usually includes marriage, divorce, inheritance, and guardianship. Examples can be seen in Nigeria and Kenya, which have sharia courts that rule on family law for Muslims. A variation exists in Tanzania, where civil courts apply sharia or secular law according to the religious backgrounds of the defendants. Several countries, including Lebanon and Indonesia, have mixed jurisdiction courts based on residual colonial legal systems and supplemented with sharia. Western countries are also exploring the idea of allowing Muslims to apply Islamic law in familial and financial disputes. In late 2008, Britain officially allowed sharia tribunals (NYT) governing marriage, divorce, and inheritance to make legally binding decisions if both parties agreed. The new system is in line with separate mediation allowed for Anglican and Jewish communities in England. Criminal law remains under the gavel of the existing legal system. "There is no reason why principles of sharia law, or any other religious code, should not be the basis for mediation," Britain's top judge, Lord Nicholas Phillips, said in a July 2008 speech (PDF). Supporters of this initiative, such as the archbishop of Canterbury, Rowan Williams, argue that it would helpmaintain social cohesion (BBC) in European societies increasingly divided by religion. However, some research suggests the process to be discriminatory toward women (BBC). Other analysts suggest the system has led to grey areas. Britain's Muslims come from all over the world, Ishtiaq Ahmed, a spokesperson for the Council for Mosques in England, told the BBC, noting that this makes it hard to discern at times "where the rulings of the sharia finish and long-held cultural practices start." Sharia has recently become a topic of political concern in the United States. The state of Oklahoma passed a ballot measure in November 2010 to ban the use of sharia law in court cases, which supporters are calling "a preemptive strike against Islamic law" (ABCNews). Several opponents of new mosques being built around the United States, including one near Ground Zero, have cited fear of the spread of sharia as a reason for opposition. And about a third of Americans in an August 2010 Newsweek poll suspect U.S. President Barack Obama sympathizes with Islamist goals (PDF) to impose sharia.

• Government under God. In those Muslim countries where Islam is the official religion listed in the constitution, sharia is declared to be a source, or the source, of the laws. Examples include Saudi Arabia, Kuwait, Bahrain, Yemen, and the United Arab Emirates, where the governments derive their legitimacy from Islam. In Pakistan, Egypt, Iran, and Iraq, among others, it is also forbidden to enact legislation that is antithetical to Islam. Saudi Arabia employs one of the strictest interpretations of sharia. Women are not allowed to drive, are under the guardianship of male relatives at all times, and must be completely covered in public. Elsewhere, governments are much more lenient, as in the United Arab Emirates, where alcohol is tolerated. Non-Muslims are not expected to obey sharia and in most countries, they are the jurisdiction of special committees and adjunct courts under the control of the government.
• Completely Secular. Muslim countries where the government is declared to be secular in the constitution include Azerbaijan, Tajikistan, Chad, Somalia, and Senegal. Islamist parties run for office occasionally in these countries and sharia often influences local customs. Popular Islamist groups are often viewed as a threat by existing governments. As in Azerbaijan in the 1990s, secularism is sometimes upheld by severe government crackdowns on Islamist groups and political parties. Similar clashes have occurred in Turkey. Under the suspicion that the majority party, the Islamist Justice and Development Party, was trying to establish sharia, Turkey's chief prosecutor petitioned the constitutional court (Economist) in March 2008 to bar the party from politics altogether. One of the politicians indicted, Prime Minister Recep Tayyip Erdogan, told Newsweek, "Turkey has achieved what people said could never be achieved--a balance between Islam, democracy, secularism and modernity." Secular Muslim countries are a minority, however, and the popularity of Islamist political parties are narrowing the gap between religion and state.