Professor Justin Willis, from our Department of History, comments on Shari'a law in Somalia and, in particular, Shari’a, Insha’allah which was recently published by Professor Mark Fathi Massoud from the University of California.
August 2021 turned out to be an appropriate moment to read the new book by Mark Fathi Massoud, a professor of politics and legal studies. Shari’a, Insha’allah is in part about the failures of external projects of state building. As I was reading it, such a project was suddenly and dramatically unravelling in Afghanistan.
Since 1990, Somalia too has been the subject of a repeated and sustained external ‘state-building’ interventions. A range of governments and international bodies have sought to reassemble some sort of central authority over the territory of the former Republic of Somalia. Those interventions have some common features: they have very often laid heavy emphasis on the law; and they have had very little success.
As the comparison with Afghanistan suggests, the tone of Shari’a, Insha’allah is often sombre. It is a study in how colonial visions of legal order tend to create disorder and oppression. A central theme here is a repeated pattern:
Attempts to centralise power through asserting the dominance of a particular understanding of the law have collided with resilient alternative ideas of the law.
The laws produced by the state have lacked legitimacy in local eyes, and the structures that are intended to enforce those laws have been corrupt and arbitrary.
State law has appeared as exotic and tyrannical – whether it has been used in the service of the rule of the British, or the Italians, or former president Siad Barre or the governments in power since
The consequence is that Somalis today readily see the current governance building efforts by international agencies as the lineal successors of earlier colonial interventions.
But the book is also optimistic, an impassioned piece of advocacy for the value of shari’a as a source of justice. ‘Shari’a law’ has become a hot-button phrase for a certain sort of hostile media commentary internationally. The tendency is to bundle up multiple negative ideas about Islam: on the treatment of women, amputations and the like. This book aims to challenge that.
The message is a clear one: stability and peace cannot be produced by importing legal experts to hold workshops and advise on laws. They must rest on the everyday processes of dispute resolution that have repeatedly reemerged amid violence and disruption. And in Somalia those processes are understood – by those who are active in them, and by the ordinary people who turn to them – as rooted in shari’a.
So while Massoud’s book is a story of failure, it is also a story of success – and of hope.
The telling itself raises some questions, though, and at times I found it a little frustrating, or even confusing. The best way I can explain this is through discussion of what are, I think, the two key themes. One is ‘shari’a’. The other is ‘the rule of law’ (the definite article is important).
The final chapter seems to emphasise the flexibility of each of these ideas. Yet in the earlier chapters it is apparent that the terms can have much more definite, less flexible meanings.
Shari’a is sometimes described as a specialist subject based on a close knowledge of multiple sources (p. 216, for example). It is also sometimes described as a blend of such knowledge with customary practice (p. 48). It can also be an ‘independent, fixed and sacred constraint on political power’ (p. 110). Those sound like rather different imaginings.
‘The rule of law’, meanwhile, appears as something quite different to the sort of ‘legal order’ that states seek to impose – ‘rule by law’, as some would call it. As Massoud puts it, the rule of law is an inherently desirable condition, in which the state itself is constrained by the law. He calls this ‘limited government’.
Yet he also uses ‘the rule of law’ in a more expansive sense, linking it to ‘political liberalism’ and the ‘promotion of human rights, equality and liberty for all’ (p.38).
The tensions between those two ideas of ‘the rule of law’ are significant. Surely, constraining the state is a desirable aim. But does oppression come always and only from the state? And is opposition to the state always liberatory? Massoud tells the story of the sheikhs who bravely stood up to denounce the progressive Family Law introduced by Siad Barre’s dictatorial regime. They certainly were brave, and they paid dearly for their courage.
But were they just resisting dictatorship? They opposed the Family Law because of its insistence on gender equality – not because Siad Barre was a dictator. So they were asserting their own, inflexible, reading of shari’a. They were resisting a dictatorial state, but also resisting ideas of gender equality.
So does the ‘rule of law’ just mean constraining the state - or does it mean something more?
I found this apparent uncertainty most troubling in the fascinating chapter on women activists in contemporary Somaliland, and their deployment of shari’a as a means to assert what are described as ‘women’s rights’. Shari’a, Massoud argues persuasively, is flexible enough to provide the tools for this.
But what exactly is the place of shari'a in this example? The activists interviewed by Massoud talk about shari'a but seem to be deriving their core idea of women’s rights from international norms. They have a particular kind of education, and are in dialogue with international NGOs. So this example might show that shari’a can be used as a way to pursue a particular idea of ‘women’s rights’ that aligns with current international human rights norms – but only where the desirability of those norms is already accepted. That would imply that those international human rights norms set the goal – shari'a just offers a route to them.
There is a further aspect to that, again revealed in this discussion of Somaliland. Women activists are reliant on male sheikhs to provide the interpretations and judgements that they need on topics like violence against women, child marriage and female genital mutilation. No matter how learned women may be, shari’a is understood to be rooted in men’s knowledge of sources. It may be flexible, but access to it is very unequal, and it seems to be rather more readily accessible to what is called here the ‘patriarchy’ than to activists who challenge that patriarchy.
This book shows that shari’a is not just a tool of violent radicals with a particular set of ideas about sexual morality and gender relations. But it perhaps also tells us that what kind of ‘rule of law’ shari'a sustains is a matter of contest – asserting or challenging state authority, arguing over the rights of ordinary women and men – and those contests are uneven, and their outcomes unpredictable.
/prod01/prodbucket01/media/durham-university/research-/73895.webp)