Re: USA Africa Dialogue Series - Sharia Law for the New Libya?

Pablo, I agree with the overall sentiment in your second paragraph. But I say again that there is a danger in using the example of sharia in colonial times to read sharia of today. I won't repeat my enunciation of the difference. The difference is one of both substance and perception. Also, I think you're mixing up emirate Northern Nigeria with non-emirate Northern Nigeria. In emirate Northern Nigeria, there were Native Courts or Alkali Courts, but they did not use customary law; they used a mixture of Sharia and some common law principles. In the non-emirate areas, it was a mixture of customary law and common law. There were a few areas with so-called mixed courts, where different sets of law were used for different cases depending on the religion of one or more of the parties to a case. Bottom line: sharia was never meant to be implemented fully even in the Muslim areas, and the restrictions on  sharia-prescribed punishments meant that in real life--away from policy texts--most Alkali or NAtive Courts simply washed their hands off criminal cases (except minor ones committed in family settings) and deferred to British appellate authorities. Civil sharia on the other hand had a robust tradition in colonial Northern Nigeria.

On Wed, Oct 26, 2011 at 9:10 AM, Pablo Idahosa <pidahosa@yorku.ca> wrote:

I didn't have time to elaborate on Moses's response, and while I might generally defer to his knowledge on this,  John has in part captured what I would have said a  reply. In Colonial  Northern Protectorate/Nigeria, there was the issue of  the up to 90 % of cases going before Nigerian courts, including, up until late in colonialism-- or at least until the 1930s when right of appeal from the native courts  was  introduced-- on native courts, including criminal acts.  Most cases were still being handled in the Native Courts according to so-called native law and custom, with the caveat that  such laws or customs should not  be be  "repugnant"-- by which they primarily meant flogging and mutilation (hudud or as qisas), which  was abolished, I believe,  and that the death penalty ought to be done "humanely", etc.

 In any event, the real is issues here is that forms of Sharia were carried out, as it continues to be carried out in many parts of Muslim world,  that do not offend western sensibility-- they are the Other, over there. It is not anti-imperialist to declare Sharia; it is not a big deal, at all, at all.
Pablo

On 26/10/11 5:03 AM, John Edward Philips wrote:

On Oct 25, 2011, at 10:33 AM, Moses Ebe Ochonu wrote:

1. The sharia of colonial times did not embrace the realm of criminality for obvious reasons. That would have undercut the ability of European colonial authorities to criminalize and prosecute infractions as a way of keeping control and enforcing colonial order. That would have created a parallel judicial system outside the purview of colonial law and outside European appellate oversight. No colonial power would have allowed that. Accordingly, they limited Sharia to family matters and crafted European-modeled secular legal institutions to deal with criminality. I work on Northern Nigeria, where this was a big issue. In a few cases where the British allowed the application of sharia to criminal infractions committed in family settings, the ensuing scandal of sharia-prescribed public floggings forced the British to withdraw their permission. In other African contexts, the colonialists were more proactive, banning the criminal aspects of sharia law and their prescribed punishment ab initio under the guise of not tolerating punishments that "offended Victorian morality."

According to everything else I've ever read about sharia law in colonial Northern Nigeria it was only on the eve of independence that sharia law was restricted to civil law only, but that sharia law, minus punishments that might have been considered "cruel or unusual" by 20th century British Law, was applied throughout colonialism in Emirate areas of Northern Nigeria. Given the origins of Common Law from Anglo-Saxon tribal law, incorporating sharia law within Common Law as a sort of traditional law the way 'urf was incorporated into Islamic law doesn't seem very strange.

Reading over this paragraph again I get the impression you are making the common confusion between Islamic law and certain punishments, as if there were nothing to Islamic law and legal procedure besides those punishments. You do understand that there are other aspects to Islamic law besides amputation, flogging, stoning etc.?


John Edward Philips<http://human.cc.hirosaki-u.ac.jp/philips/>
International Society, College of Humanities, Hirosaki University
"Homo sum; humani nihil a me alienum puto." -Terentius Afer
<http://www.boydell.co.uk/www.urpress.com/80462561.HTM>

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