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Is Rule of Law Reform Compatible with Sharia?

In this sessions, Jan-Michiel Otto (Leiden University), Siavash Rahbari (The Asia Foundation) and Faeeza Vaid (Muslim Women’s Network) had an honest discussion about whether supporting rule of law development can be undertaken in areas where customary Islamic law is widely applied. Questions included, should donors have a red line when working with countries that have sharia in formal and or informal legislation? Should donors perhaps stop working there altogether? And if not, what kind of interventions can they do? Also, how should we communicate about this and overcome the inevitable stigma surrounding sharia?

What key arguments / counter arguments were made?

All speakers agreed that there are many different interpretations of sharia all over the world, and that the introduction of sharia to national legislations is often politically motivated. Nevertheless, where the national legal system fails to provide justice for all, the promise of god’s law has a certain appeal to voters. That said, in reality the application of sharia is often rare, remaining largely symbolic. But most importantly, the key argument was that sharia and the rule of law are not incompatible; we just need a pragmatic interpretation of sharia.

What are the "Elephants in the Room"?

There were two clear elephants in the room. First, the obvious problem of the conflict sensitivities and gender/human rights implications of working on rule of law in countries that have sharia legislation. Secondly, there is specific groupthink that no one wants to challenge, that recognizes the incompatibility between sharia and rule of law; both among Muslims (sharia is part of Islam) and Non-Muslims (sharia is bad and conflicts with rule of law). Some aid organisations are hesitant to discuss sharia, and avoid the topic all together. However, this is a serious shortcoming. In Dutch politics sharia is often referred to as being the opposite side of rule of law, meaning that rather than understanding its diverse interpretations and applications and engaging with it in a constructive way, decision makers ignore it altogether.

What recommendations for future policy, research or practice are put forward?

Justice is the goal of rule of law reform, regardless of the form it comes in. It is facile to assume that in a Muslim majority country, sharia does not matter: Islam says that there is no Islam without sharia. Thus, you cannot say, “I want Islam but not sharia”. The question is, what interpretation of sharia is used, and who can employ sharia for justice?

Hence all speakers stressed the importance of a pragmatic use of the most amenable elements of sharia, and agreed that not using it will be a handicap for reform. Moreover, some argued that the underlying tenets of sharia largely match international human rights, and offer a way to speak to more religious communities about rights and laws. For example working through sharia systems can be useful to uphold the Quran and promote law reforms, for example by stressing how the Quran demands the protection of children from harm. It’s complicated. Upholding all aspects of sharia is clearly at odds with western legal norms. But ignoring sharia misses the opportunity to connect with communities and respect existing power dynamics, both of which offer the basis needed to achieve support for wider legal reforms.