The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law
| Author | Abdullahi Ahmed An‐Nacim |
| Published date | 01 January 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00782.x |
| Date | 01 January 2010 |
THE
MODERN LAW REVIEW
Volume 73 January 2010 No 1
The Compatibility Dialectic: Mediating the Legitimate
Coexistence of Islamic Law and State Law
Abdullahi Ahmed An-Na
c
im
n
Islamic Lawis not now and cannot be the state lawof any state, whether Muslims arethe majority
or minority of the population.This view does not dispute the religious authorityof Islamic Law
for Muslims, which exists onlyoutside the framework of the state. Still, somepri nciplesof Isla-
mic Law should be relevant to the public discourse, provided the argument is made in terms of
what the authorcal ls‘civicreason’ and not simplyby assertions of religious conviction.While the
two are di¡erent types of normative systems, each based on its own sources of authority and
legitimacy, there are possibilities of compatibility and mutual in£uence between Islamic Law
and state law ascomplementary normative systems, withoutrequiring either to conform to the
nature and role of the other. This lecture examines the requirements, scope and dynamics of this
dialectic relationship, whether Muslims are majority or minority.
INTRODUCTION
I am grateful for thehigh academic honorof presenting the 2009 Chorley Lecture
at the LondonSchool of Economics, but I must acknowledgefrom the outsetthat
the issues raised by the relationship of Islamic Law and state law are far from
purely theoretical or academic for me. As a Muslim human rights advocate from
Sudan, I am discussing these issues in light of Sudan’s tragic experience, begin-
ning in 1983, with calls to enforceIslamic Law(Sharia) as the state law of the coun-
try.
1
Nowliving with my family in the United States, I am alsoe ngaged withthe
aspirations of ‘Muslims of theWest’ to reconcile their Islamic identity with citi-
zenship of their countries, and the concerns of their wider societies in the United
Kingdom and elsewhere. My approach is both personally religious and publicly
committed to rendering scholarship in the service of social change. Though I
reference the secular state and law in the course of my argument, it is not to
n
Charles HowardCandler Professor of Law, EmoryUniversity; Global Legal Scholar,Warwick Uni-
versity Schoolof Law; Extraordinary Professor,Center for Human Rights,Faculty of Law,University
of Pretoria. I amgrateful for the research assistance of Nathaniel Heber, JD candidate,Emory Univer-
sity School of Law. I am also grateful to Silas W. Allard of Emory Law School for his most helpful
comments and suggestions.This is the text of the 38
th
ChorleyLecture, delivered at the London School
of Economics o n 10June 2009.
1 I use the term‘Islamic Law’here for its familiarity to audiences using the English language, though
it is not an accurate translation of the term‘Sharia’ as the religious normative system of Islam.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(1) 1^29
advance Secularism as a life philosophy, which I personally reject, and do not
intend to discuss here. My purpose is to develop a coherent and persuasive model
for mediating the relationship of Islamic Law and state law, so that I can be a Mus-
lim freelyand by conviction, while fully respecting the human rights of all other
human being s, without any other distinction or quali¢cation tha n being human.
I should also note that myper sonal engagement with the subject of this lecture
is not basedon an assumption that the state anywhere is neutral or benign, or that
state law is always just and legitimate.The state is a political institution, and state
law is often used by the ruling elite and privileged classes and groups to advance
and protect their interests.These realities of the universal human condition must
always be understood and taken seriously in our pursuit of individual freedom
and social justice.To achieve and sustain these objectives, it is imperative to exer-
cise constant vigilance and engage in political struggle for the transparency and
accountability of all o⁄cial institutions and actors. I believe my proposed
approach to the relationship of Islamic Law and state law is premised on a clear
appreciation of the need for such vigilance and struggle in the cause of individual
freedom and social justice. I will not elaborate furtheron this because it is not the
subject of this lecture, but only wish to register my position in this regard.
The subjectof this lecture, withdue regard forthese realities, is the relationship
of Islamic Law to state law preciselybecause this issue is i ntegral to contemporary
global struggles for individual freedomand social justice. Muslims constitute the
predominant majority in at least forty countries and signi¢cant minorities in
many others across all regions of the world; the public role of Islamic Law is a
global issue. The subject is also important from a comparative perspective for
other religious systems and cultural traditions, regarding the meaning andimpli-
cations of legal pluralism and related issues.With this framing of the subject in
mind, let me summarise my main argument and explain my approach.
First, my general argument is that the nature of Islamic Law as a religious nor-
mative system, on the one hand, and of the state and state law as secular political
institutions, on the other, require clear di¡erentiation between the two in theory
and separation in practice. However, the methodological and normative similari-
ties betweenIslamic Lawand state law, and the fact that theyboth seek to regulate
human behavior, raise possibilities of dynamic interaction and cross-fertilisation
between the two. For instance, interaction through ‘civic reason,’ as I will discuss
further below, can legitimise state law among religiousbelievers, and change how
Muslims perceive and practice the social aspects of Islamic Lawwithin the frame-
work of the constitutional and human rights obligations of the state.
The premise of this argument is that Islamic Law is not now and cannot be the state
law of any state, whether Muslims are the majority or minority of the population.
Islamic Lawcan not be enforced as state law and remain Islamic Law in the sense that
Muslims believe it to be religiously binding. Since the enforcement of Islamic Law
through state institutions negates its religious nature, the outcome will always be
secular, not religious. In other words, all state law is secular, regardless of claims of
an‘Islamic state’that enforces Islamic Law in countries like Iran and Saudi Arabia.
2
As
2 For a more detailed defence of this proposition, see A. A. An-Na
c
im, Islam and the Secular State:
Negotiating the Futureof Shari
c
a(Cambridge,Mass: Harvard UP,2008) 30^36.
The Compatibility Dialectic
2r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(1) 1^29
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